HomeMy WebLinkAboutresolution.council.074-05 RESOLUTION NO. ~
Series of 2005
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING AN OPTION AND LEASE AGREEMET FOR PLACEMENT OF A
CELLULAR TOVTER ON CITY PROPERTY, BETWEEN THE CITY OF ASPEN
AND RSA NO. 3 LIMITED PARTNERSHIP DOING BUS1NESS AS VERIZON
WIRELESS, AND AUTHORIZING THE MAYOR OR CITY MANAGER TO
EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council an Option and Lease
Agreement for placement of a cellular tower on property owned by the city of Aspen near
the water plant, between the City of Aspen and RSA No. 3 Limited Partnership d/b/a
Verizon Wireless, a tree and accurate copy of which is attached hereto;
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY
OF ASPEN, COLORADO:
That the City Council of the City of Aspen hereby approves that Option and Lease
Agreement for placement of a cellular tower near the water plant, between the City of
Aspen and RSA No. 3 Limited Partnership d/b/a Verizon Wireless, a copy of which is
annexed hereto and incorporated herein, and does hereby authorize the Mayor or City
Manager to execute said agreement or any substantially similar agreement on behalf of
the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the // day of~_a~05. ~
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
City of Aspen, Colorado, at a meeting held on the da~~ ~°f~
Ti~. ~.~: ,~o~.:~,-o:~.,~,~,,w~ ~ kathryn S. Ko,fi Cft~-~(~lerk~
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OPTION AND LEASE AGREEMENT
This Agreement is made this day of ,20 , between the City of
Aspen, a Colorado home role municipality with its principal address located at 130 Galena Street,
Aspen, Colorado 81611, with Tax ID # 84-6000563, hereinafter designated LESSOR and
Colorado RSA No. 3 Limited Partnership d/b/a Verizon Wireless, with its principal offices
located at 180 Washington Valley Road, Bedminster, New Jersey, 07921, hereinafter designated
LESSEE. LESSOR and LESSEE are at times collectively referred to hereinafter as the "Parties"
or individually as the "Party."
LESSOR is the owner of that certain real property located in the City of Aspen, County of
Pitkin, State of Colorado as more particularly described in Exhibit "A," attached hereto and made
part hereof. The entirety of LESSOR's property is referred to hereinafter as the "Property."
LESSEE desires to obtain an option to lease an approximately one thousand (1,000) square foot
portion of the Property, with rights-of-way for access and utilities thereto. LESSEE's leased
portion of the Property, together with all access and utilities fights thereto, are substantially as
described herein in Exhibit "B" attached hereto and made a part hereof and are collectively
referred to hereinafter as the "Premises."
OPTION AGREEMENT
NOW, THEREFORE, in consideration of the sum of One Thousand and 00/100 Dollars
($1,000.00), hereinafter referred to as "Option Money," to be paid by LESSEE to LESSOR, which
LESSEE will provide within forty-five (45) days of its execution of this Agreement, LESSOR
hereby grants to LESSEE the right and option to lease said Premises, including rights-of-way for
access and utilities thereto, for the term and in accordance with the covenants and conditions set
forth here, in.
The option may be exercised at any time on or prior to twelve (12) months from execution
of this Agreement by both Parties. At LESSEE's election and upon LESSEE's prior written
notification to LESSOR, the time during which the option may be exercised may be further
extended for two (2) additional periods of twelve (12) months from the first anniversary of the
effective date of this Agreement, with an additional payment of One Thousand and 00/100 Dollars
($1,000.00) by LESSEE to LESSOR for each twelve (12) month extension. The time during
which the option may be exercised may be further extended by mutual agreement in writing. If
during said option period, or during the term of the lease if the option is exercised, LESSOR
decides to subdivide, sell or change the status of the Property or its property contiguous thereto, it
shall immediately notify LESSEE in writing so that LESSEE can take steps necessary to protect
LESSEE's interest in the Premises.
This option may be sold, assigned or transferred by LESSEE, without any approval or
consent of LESSOR, to LESSEE's principal, affiliates, or subsidiaries of its principal; to any
entity which acquires all or substantially all of LESSEE's assets in the market defmed by the
Federal Communications Commission in which the Property is located by reason of a merger,
acquisition or other business reorganization; or to any entity which acquires or receives an
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interest in the majority of communications towers of LESSEE in the market defined by the
Federal Communications Commission in which the Property is located. As to other parties, this
Agreement may not be sold, assigned or transferred without the written consent of LESSOR,
which such consent will not be unreasonably withheld or delayed.
Should LESSEE fail to exercise this option or any extension thereof within the time herein
limited, all rights and privileges granted hereunder shall be deemed completely surrendered, this
option terminated, and LESSOR shall retain all money paid for the option, and no additional
money shall be payable by either Party to the other.
LESSOR shall cooperate with LESSEE in its efforts to obtain all certificates, permits and
other approvals that may be required by any Federal, State or Local authorities that will permit
LESSEE use of the Premises. LESSOR shall take no action that would adversely affect the status
of the Property with respect to the proposed use by LESSEE.
LESSOR shall permit LESSEE, during the option period, fxee ingress and egress to the
Premises to conduct such surveys, inspections, structural strength analyses, subsurface soil tests,
and other activities of a similar nature as LESSEE may deem necessary, at the sole cost of
LESSEE.
LESSOR agrees to execute a memorandum of this Option and Lease Agreement
("Memorandum") that LESSEE may record with the appropriate recording officer. The date set
forth in the Memorandum is for recording purposes only and bears no reference to commencement
of either term or rent payments.
LESSEE shall give notice of the exercise of the option to LESSOR in writing by certified
mail, retum receipt requested. Notice shall be effective upon actual receipt or refusal as shown
on the reo~ipt obtained pursuant to the foregoing. On the commencement date indicated in such
notice, ~e following agreement shall take effect:
LEASE AGREEMENT
1. PREMISES. LESSOR is the owner of that certain Property located in the City of
Aspen, County of Pitkin, State of Colorado, as more particularly described herein in Exhibit "A"
attached hereto and made a part hereof. The entirety of LESSOR's Property is referred to
hereinafter as the "Property." LESSOR hereby leases to LESSEE a portion of the Property, being
described as an approximately one thousand (1,000) square foot portion of the Property. In
addition, LESSOR grants to LESSEE the non-exclusive right for ingress and egress, seven (7) days
a week twenty-four (24) hours a day, on foot or motor vehicle, including tracks, along a twelve-
foot (12') wide right-of-way extending from the nearest public right-of-way, Doolittle Drive, to the
leased portion of the Property. LESSOR also hereby grants to LESSEE a twelve-foot (12') wide
utility right-of-way across the Property to the leased portion of the Property. LESSEE's leased
portion of the Property, together with the rights-of-way for access and utilities thereto, are
hereinafter collectively referred to as the "Premises" and are substantially as described in Exhibit
"B" attached hereto and made a part hereof.
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In the event any public utility is unable to use the aforementioned right-of-way, LESSOR
hereby agrees to grant an additional right-of-way either to LESSEE or to the public utility at no
cost to LESSEE.
2. SURVEY. LESSOR also grants to LESSEE the right to survey the Property and
the Premises, which survey is attached hereto as Exhibit "C" and made a part hereof, and shall
control in the event of boundary and access discrepancies between it and Exhibit "A" and/or
Exhibit "B." Cost for such work shall be borne by LESSEE.
3. TERM. Beginning on the Commencement Date (as hereinafter defined), this
Agreement shall be for an initial term of five (5) years at an annual rental of Six Thousand and
00/100 Dollars ($6,000.00), to be paid in equal monthly installments of Five Hundred and 00/100
Dollars ($500.00), on the first day of the month, in advance, to LESSOR or to such other person,
firm or place as the LESSOR may, from time to time, designate in writing at least thirty (30) days
in advance of any rental payment date. The term and obligation to pay rent will begin immediately
upon the exercise of the option ("Commencement Date").
4. EXTENSIONS. This Agreement shall automatically be extended for four (4)
additional five (5) year terms unless LESSEE terminates it at the end of the then current term by
giving LESSOR written notice of the intent to terminate at least six (6) months prior to the end of
the then current term.
5. EXTENSION RENTALS. Annual rental for each five (5) year extension term
shall be equal to one hundred ten percent (110%) of the annual rental payable with respect to the
immediately preceding five (5) year term. All rental payments shall be made monthly, in advance.
6. ADDITIONAL EXTENSIONS. If at the end of the fourth (4*) five (5) year
extensior~tenn this Agreement has not been terminated by either Party by giving to the other
written hotice of an intention to terminate it at least six (6) months prior to the end of such term,
this Agreement shall continue in force upon the same covenants, terms and conditions for a further
term of five (5) years and for five (5) year terms thereafter until terminated by either Party by
giving to the oth& written notice of its intention to so terminate at least six (6) months prior to the
end of such tenn. Annual rental for each five (5) year additional extension term shall be equal to
one hundred ten percent (110%) of the annual rental payable with respect to the immediately
preceding five (5) year term. All rental payments shall be made monthly, in advance.
7. USE; GOVERNMENTAL APPROVALS. LESSEE shall use the Premises for the
purpose of constructing, maintaining and operating a communications facility and uses incidental
and all necessary appurtenances. By way of example and not limitation, LESSEE shall have the
right, at its sole option, to install and use at the Premises a generator, of the type and kind
determined solely by the LESSEE, in connection with the LESSEE's communications facilities. A
security fence consisting of chain link construction or similar but comparable construction may be
placed around the perimeter of the Premises at the discretion of LESSEE (not including the access
easement). All improvements shall be at LESSEE's expense and the installation of all
improvements shall be at the discretion and option of LESSEE. LESSEE shall have the right to
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replace, repair, add or othexwise modify its equipment or any portion thereof, whether the
equipment is specified or not on any exhibit attached hereto, during the term of this Agreement.
LESSEE will maintain the Premises in a good condition, reasonable wear and tear excepted.
LESSOR will maintain the Property, excluding the Premises, in good condition, reasonable wear
and tear excepted. It is understood and agreed that LESSEE's ability to use the Premises is
contingent upon its obtaining after the execution date of this Agreement all of the certificates,
permits and other approvals that may be required'by any Federal, State or Local authorities as well
as satisfactory soil boring tests which will permit LESSEE use of the Premises as set forth above.
LESSOR shall cooperate with LESSEE in its efforts to obtain such approvals and shall take no
action that would adversely affect the status of the Property with respect to the proposed use by
LESSEE. In the event that any of such applications should be finally rejected or any certificate,
permit, license or approval issued to LESSEE is canceled, expires, lapses, or is otherwise
withdrawn or terminated by govemmental authority, or soil boring tests are found to be
unsatisfactory so that LESSEE in its sole discretion will be unable to use the Property for its
intended purposes, or LESSEE determines that the Premises is no longer technically compatible
for its intended use, LESSEE shall have the right to terminate this Agreement. Notice of
LESSEE's exercise of its right to terminate shall be given to LESSOR in writing by certified mail,
return receipt requested, and shall be effective upon the mailing of such notice by LESSEE. All
rentals paid to said termination date shall be retained by LESSOR. Upon such termination, this
Agreement shall be of no further force or effect except to the extent of the representations,
warranties and indemnities made by each party to the other hereunder. Otherwise, all the Parties
shall have no further obligations, including the payment of money, to each other.
8. INDEMNIFICATION. Subject to Paragraph 9 below, LESSEE shall indemnify
and hold LESSOR harmless against any claim of liability or loss from personal injury or property
damage resulting from or arising out of the use and occupancy of the Premises or the Property by
LESSEE, its servants or agents, excepting, however, such claims or damages as may be due to or
caused b~the acts or omissions of LESSOR, or its servants or agents.
9. INSURANCE. LESSEE agrees that, at its own cost and expense, it will maintain
comprehensive general liability and property liability insurance with liability limits of not less
than One Million and 00/100 Dollars ($1,000,000.00) for injury to or death of one or more
persons in any one occurrence and Six Hundred Thousand and 00/100 Dollars ($600,000.00) for
damage or destruction to property in any one occurrence. LESSOR agrees that LESSEE may
self-insure against any loss or damage that could be covered by a comprehensive general public
liability insurance policy. LESSOR shall carry comprehensive general liability and property
liability insurance with liability limits in an amount covering any potential liability exposure to
LESSOR under the Colorado Governmental Immunity Act, CRS Section 24-10-101, et seq., as
from time to time amended.
The Parties hereto understand and agree that LESSOR is relying on and does not waive
or intend to waive by this Agreement, any provision hereof, including the provisions of this
paragraph, the monetary limitations or any other rights, immunities, and protections provided by
the Colorado Governmental Immunity Act, CRS Section 24-10-! 01, et seq., as from time to time
amended, or otherwise available to LESSOR.
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10. ANNUAL TERMINATION. INTENTIONALLY OMITTED.
11. INTERFERENCE. LESSEE agrees to have installed radio equipment of the type
and frequency which will not cause interference to the existing equipment of LESSOR, other
current lessees of the Property. In the event LESSEE's equipment causes such interference, and
after LESSOR has notified LESSEE of such interference pursuant to this Agreement, LESSEE
will take all steps necessary to correct and eliminate the interference. LESSOR acknowledges
that interference may come from different sources, and LESSEE shall only be responsible to
correct interference caused by LESSEE's equipment. In the event LESSEE fails to so correct
such interference after said notice and time period, LESSEE shall be in default under this
Agreement. LESSOR agrees that LESSOR and/or any other future tenants of the Property will
be permitted to install only such radio equipment that is of the type and frequency which will not
cause interference to LESSEE. LESSOR further agrees that the current tenants will only be
permitted to install additional equipment that is of a type and frequency which will not cause
interference to the LESSEE. However, LESSOR shall not be required to bring any legal action
against the interfering tenant. Nothing in this section or Agreement shall be deemed to limit
LESSEE's right of action against the interfering tenant. The Parties acknowledge that there will
not be an adequate remedy at law for non-compliance with the provisions of this paragraph and
therefore, LESSEE shall have the fight to equitable remedies, such as, without limitation,
injunctive relief and specific performance.
12. REMOVAL UPON TERMINATION. LESSEE, upon termination of the
Agreement, shall, within ninety (90) days, remove its building(s), antenna structure(s) (except
footings), fixtures and all personal property and otherwise restore the Property to its original
condition, reasonable wear and tear excepted. LESSOR agrees and acknowledges that all of the
equipment, fixtures and personal property of LESSEE shall remain the personal property of
LESSEE and LESSEE shall have the right to remove the same, whether or not said items are
consider4~t fixtures and attachments to real property under applicable law. If such time for removal
causes LESSEE to remain on the Premises after termination of this Agreement, LESSEE shall pay
rent at the then-existing monthly rote, or on the existing monthly pro-rata basis if based upon a
longer payment term, until such time as the removal of the building, antenna structure, fixtures and
all personal property are completed.
13. SPACE SUBTENANTS. LESSEE may sublet space on its communications
tower only with prior written consent from LESSOR, which such consent shall not be
unreasonably withheld, conditioned or delayed. In addition, in the event LESSEE receives any
request or requests to locate any wireless communications equipment on LESSEE's
communications tower from any third party, LESSEE may permit such equipment on the
communications tower only with zoning approval from LESSOR, and upon the third party entering
into a separate ground lease agreement with LESSOR. Any sublease that is entered into by
LESSEE shall be subject to the provisions of this Agreement and shall be binding upon the
successors, assigns, heirs and legal representatives of the respective Parties hereto.
14. RIGHTS UPON SALE. Should LESSOR, at any time during the term of this
Agreement, decide to sell all or any part of the Property to a purchaser other than LESSEE, such
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sale shall be under and subject to this Agreement and LESSEE's rights hereunder, and any sale by
LESSOR of the portion of this Property underlying the rights~of-way herein granted shall be under
and subject to the right of LESSEE in and to such rights-of-way.
15. QUIET ENJOYMENT. LESSOR covenants that LESSEE, on paying rem and
performing the covenants, shall peaceably and quietly have, hold and enjoy the Premises.
16. TITLE. LESSOR covenants that LESSOR is seized of good and sufficient title
and interest to the Property and has full authority to enter into and execute this Agreement.
LESSOR further covenants that there are no other liens, judgments or impediments of title on the
Property, or affecting LESSOR's title to the same, and that there are no covenants, easements or
restrictions which prevent the use of the Premises by LESSEE as set forth above.
17. INTEGRATION. It is agreed and understood that this Agreement contains all
agreements, promises and understandings between LESSOR and LESSEE and that no verbal or
oral agreements, promises or understandings shall be binding upon either LESSOR or LESSEE in
any dispute, controversy or proceeding at law, and any addition, variation or modification to this
Agreement shall be void and ineffective unless made in writing and signed by the Parties. In the
event any provision of the Agreement is found to be invalid or unenforceable, such finding shall
not affect the validity and enforceability of the remaining provisions of this Agreement. The
failure of either Party to insist upon strict performance of any of the terms or conditions of this
Agreement or to exercise any of its rights under the Agreement shall not waive such rights and
such Party shall have the right to enforce such fights at any time and take such action as may be
lawful and authorized under this Agreement, either in law or in equity.
18. GOVERNING LAW. This Agreement and the performance thereof shall be
governed, interpreted, construed and regulated by the laws of the State in which the Property is
located. :;~
19. ASSIGNMENT. This Agreement may be sold, assigned or transferred by
LESSEE, without any approval or consent of LESSOR, to LESSEE's principal, affiliates, or
subsidiaries of its principal; to any entity which acquires all or substantially all of LESSEE's
assets in the market defined by the Federal Communications Commission in which the Property
is located by reason of a merger, acquisition or other business reorganization; or to any entity
which acquires or receives an interest in the majority of communications towers of LESSEE in
the market defined by the Federal Communications Commission in which the Property is
located. As to other parties, this Agreement may not be sold, assigned or transferred without the
written consent of LESSOR, which such consent will not be unreasonably withheld or delayed.
20. NOTICES. All notices hereunder must be in writing and shall be deemed validly
given if sent by certified mail, return receipt requested or by commercial courier, provided the
courier's regular business is delivery service and provided further that it guarantees delivery to the
addressee by the end of the next business day following the courier's receipt from the sender,
addressed as follows (or any other address that the Party to be notified may have designated to the
sender by like notice):
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LESSOR:
City of Aspen
130 Galena Street
Aspen, Colorado 81611
LESSEE:
Colorado RSA No.3 Limited Partnership'
d/b/a Verizon Wireless
Atto: Network Real Estate
180 Washington Valley Road
Bedminster, New Jersey 07921
Unless otherwise stated in this Agreement, notice shall be effective upon actual receipt or
refusal as shown on the receipt obtained pursuant to the foregoing.
21. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal
representatives, successors and assigns of the Parties hereto.
22. SUBORDINATION AND NON-DISTURBANCE. At LESSOR's option, this
Agreement shall be subordinate to any mortgage or other security interest by LESSOR which from
time to time may encumber all or part of the Property or rights-of-way; provided, however, every
such mortgage or other security interest shall recognize the validity of this Agreement in the event
of a foreclosure of LESSOR's interest and also LESSEE's right to remain in occupancy of and
have access to the Premises as long as LESSEE is not in default of this Agreement. LESSEE shall
execute whatever instruments may reasonably be required to evidence this subordination clause.
In the event the Property is encumbered by a mortgage or other security interest, LESSOR,
immediately after this Agreement is executed, will obtain and furnish to LESSEE a non-
disturbatlee agreement for each such mortgage or other security interest in recordable form. In the
event LESSOR defaults in the payment and/or other performance of any mortgage or other security
interest encumbering the Property, LESSEE may, at its sole option and without obligation, cure or
correct LESSOR's default and upon doing so, LESSEE shall be subrogated to any and all rights,
titles, liens and equities of the holders of such mortgage or security interest and LESSEE shall be
entitled to deduct and setoff against all rents that may otherwise become due under this Agreement
the sums paid by LESSEE to cure or correct such defaults.
23. RECORDING. LESSOR agrees to execute a Memorandum of this Option and
Lease Agreement ("Memorandum") that LESSEE may record with the appropriate recording
officer. The date set forth in the Memorandum is for recording purposes only and bears no
reference to commencement of either term or rent payments.
24. DEFAULT. In the event there is a default by LESSEE with respect to any of the
provisions of this Agreement or its obligations under it, including the payment of rent, LESSOR
shall give LESSEE written notice of such default. After receipt of such written notice, LESSEE
shall have fifteen (15) days in which to cure any monetary default and thirty (30) days in which to
cure any non-monetary default, provided LESSEE shall have such extended period as may be
required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires
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more than thirty (30) days and LESSEE commences the cure within the thirty (30) day period and
thereafter continuously and diligently pursues the cure to completion. LESSOR may not maintain
any action or effect any remedies for default against LESSEE unless and until LESSEE has failed
to cure the same within the time periods provided in this Paragraph.
25. ENVIRONMENTAL. LESSOR will be responsible for all obligations of
compliance with any and all environmental and industrial hygiene laws applicable to LESSOR,
including any regulations, guidelines, standards, or policies of any governmental authorities
regulating or imposing standards of liability or standards of conduct with regard to any
environmental or industrial hygiene conditions or concerns as may now or at any time hereafter
be in effect, that are or were in any way related to activity now conducted in, on, or in any way
related to the Property, unless such conditions or concems are caused by the activities of
LESSEE.
26. CASUALTY. In the event of damage by fire or other casualty to the Premises that
cannot reasonably be expected to be repaired within forty-five (45) days following same or, if the
Property is damaged by fire or other casualty so that such damage may reasonably be expected to
disrupt LESSEE's operations at the Premises for more than forty-five (45) days, then LESSEE
may at any time following such fire or other casualty, provided LESSOR has not completed the
restoration required to permit LESSEE to resume its operation at the Premises, terminate this
Agreement upon fifteen (15) days written notice to LESSOR. Any such notice of termination shall
cause this Agreement to expire with the same force and effect as though the date set forth in such
notice were the date originally set as the expiration date of this Agreement and the Parties shall
make an appropriate adjustment, as of such termination date, with respect to payments due to the
other under this Agreement. Notwithstanding the foregoing, all rental payments shall abate during
the period of repair following such fire or other casualty.
27~ SUBMISSION OF AGREEMENT. The submission of this Agreement for
examination does not constitute an offer to lease the Premises and this Agreement becomes
effective only upon the full execution of this Agreement by the Parties. If any provision herein is
invalid, it shall be considered deleted from this Agreement and shall not invalidate the remaining
provisions of this Agreement. Each of the Parties hereto warrants to the other that the person or
persons executing this Agreement on behalf of such party has the full right, power and authority to
enter into and execute this Agreement on such Party's behalf and that no consent from any other
person or entity is necessary as a condition precedent to the legal effect of this Agreement.
28. APPLICABLE LAWS. LESSEE shall use the Premises as may be required or as
permitted by applicable laws, rules and regulations. LESSOR agrees to keep the Property in
conformance with all applicable, laws, rules and regulations and agrees to reasonably cooperate
with LESSEE regarding any compliance required by LESSEE in respect to its use of the
Premises.
29. SURVIVAL. The provisions of the Agreement relating to indemnification from
one Party to the other Party shall survive any termination or expiration of this Agreement.
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Additionally, any provisions of this Agreement that require performance subsequent to the
termination or expiration of this Agreement shall also survive such termination or expiration.
30. CAPTIONS. The captions contained in this Agreement are inserted for
convenience only and are not intended to be part of the Agreement. They shall not affect or be
utilized in the construction or interpretation of the Agreement.
IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their
respective seals the day and year first above written.
LESSOR:
CityofAspen
By:
Name:
Title:
Date:
LESSEE:
Colorado RSA No. 3 Limited Partnership
d/b/a Verizon Wireless
By: Verizon Wireless (VAW) LLC d/b/a Verizon
Wireless, its General Partner
By:
Name:
Its:
Date:
Keith A. Surratt
West Area Vice President - Network
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Exhibit "A"
(Legal Description of Property)
Lot 25,
CITY OF ASPEN WATER TREATMENT PLANT AND AFFORDABLE HOUSING
PROJECT S.P.A. AND SUBDIVISION, according to the Plat thereof filed January 8, 1997 in
Plat Book 41 at Page 41.
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3.0
October 4, 2005
By Email
Edward Sadler
City of Aspen Manager
130 So. Galena Street
Aspen, CO 81611
Re: City of Aspen Water Treatment Plant Facility
Coverage Objectives and Limitations with Tie Hack
(Internal reference: CO3 Castle Creek, Alt. 1)
Dear Ed:
Consistent with our discussion last week, I provide information to be included in
· the City Council packets for the October 11 hearing. I will bring the Verizon Wireless
design.engineer (David Kennard) with me to the hearing. We need to know where this
matter-will be on the agenda, as we will be traveling from the metro area.
Initially, I want to explain the distinction between a capacity site and coverage
sites. There are two basic types of coverage sites. One that is the only site covering an
area or a town, and one that expands existing coverage. If the coverage site is the only
site covering the town, it is typically located at higher elevations, for example, on the top
of ski areas or mountains. The objective of this type of coverage site is to provide service
in a large geographic area that isn't too densely populated. This becomes important for
cell site capacity reasons. Any given ceil site can only handle a finite amount of traffic.
For this purpose, tall locations are preferred in more rural areas. Coverage expansion
sites are at lower elevations so thei[ signal does not interfere with other existing sites in
the coverage area. They share line of site with other existing cell sites.
Distinguish this concept with a capacity site. A capacity site is generally lower in
elevation, but utilizes the maximum number of antennas and radios. The objective of a
capacity site is to provide more radio channels, which equates with more calling capacity,
i.e. a larger number of users can use their phones at the same time. A capacity site is
needed when an existing site must handle more traffic than it is capable of handling. In
order to alleviate customers from having blocked calls (unable to connect), dropped calls
(when the call is terminated due to an overload in capacity) another site is needed in the
area to handle some of the traffic.
The objective of the installation at the water treatment plant has always been, and
will continue to be, a capacity site. There are currently only two sites serving all of
Aspen. As you can imagine, those sites are overwhelmed by caller traffic.
David Kennard and Kenneth Peralez (system performance engineer) met with
Charles Fagan, Hans Hohl (Aspen Highlands Ski Area) and Renee Hassle (Pitkin County
FM/TV) on September 21. The purpose of the site visit was to evaluate potential cell site
locations on Tie Hack/Buttermilk. The entire group drove to the top of the ski area.
They considered several locations on the ski hill. David Kennard and Kenneth Peralez
determined that these locations would not work to meet the objectives of the proposed
installation at the water treatment plant.
On September 21, the group initially considered a location near the top of
Buttermilk. That location will not work as it is too tall. An installation there would
cause intra system interference with the existing Verizon Wireless site at the Airport
Business Center. In this instance, too tall is not a good thing, as transmissions from this
location would wreak havoc with the airport site. See the enclosed topographic map
which illustrates the location of the Aspen Airport site as well as the two existing sites
within the City. As the group traveled down Buttermilk, they considered other locations.
These locations would not work as the signal paths would be constrained by slopes from
two adjacent ridges. I tried, but failed to address this concept at the hearing on
September 12. A site here will be amenable to a single set of panel antennas, which
would result in a constrained coverage area and limited capacity. Remember, a larger
number of antennas will allow a greater number of callers to use the system at the same
time..A full three sectored site (three sets of four panel antennas) would not work at the
lowe't~Buttermilk locations, as the signals from two of the three sectors would be blocked
by the terrain. This completely defies the objective for the proposed installation. A
single sector (ofily one set of antennas) cannot handle much caller capacity. Again, this
installation is to provide capacity'relief for the two downtown Aspen sites. To provide
capacity relief, the site must deploy the greatest number of antennas possible.
Additionally, due to the terrain, it is not certain that a site on lower Buttermilk
could attain line of sight to northwest Aspen. It is also questionable whether an
installation here would provide coverage at the base of Highlands.
Bottom line, the locations considered on Buttermilk will not work to satisfy the
Verizon Wireless objectives for the proposed installation. There is no single location
which will serve Highlands, but also provide capacity relief for the northwest portion of
Aspen. From an engineering perspective, there is no location on Buttermilk which will
provide coverage to Highlands, but will also provide the capacity relief which is essential
for the downtown Aspen sites.
Mr. Kenneth Peralez conducted testing of the proposed location at the water
treatment plant on October 3. His testing revealed that the site at the water treatment
plant will provide coverage at the middle school, high school, ARC, hospital, golf course,
southern portion of Cemetery Lane, and to a lesser extent at Highlands. YES the testing
demonstrated some coverage at the Highlands area. See the enclosed elevation views.
The proposed site will be located at 8,111, see the upper right comer. The lowest
elevation on the far left portion of this document is the school complex. This reveals that
there is line of sight to the school complex. Line of sight equates to coverage. The field
testing has confirmed our preliminary assessment.
I know that there are residences and businesses at the base of Highlands which
have expressed an urgent desire for cell phone service. Regrettably, funding is not
available to build two sites at this time. The more pressing need is the capacity relief, but
also service at the schools, ARC, hospital and residential areas in northwest Aspen.
Perhaps in the future a smaller repeater or in-building amplification system could be
developed to meet the needs at Highlands. Customer complaints to the Verizon Wireless
sales personnel will trigger management to provide funding for new installations. We
have advised Mr. Fagan to contact two sales personnel; Gary Tingy 970.290.2000 and
Chris Colton, 970.250.1493. These individuals can influence management decisions
relative to the allocation of funds.
If for some reason the proposed installation is not approved, this does not mean
that Verizon Wireless will proceed to develop a site to serve Highlands. In fact, the
money for this installation will likely be allocated to a different portion of the state. A
substantial number of people, including specifically emergency service personnel, will
suffer because of blocked signals or no service. This is an unfortunate result, as capacity
relief for Aspen, as well as service to areas presently not served (hospital, schools, ARC),
are imAnediate concerns which might not be addressed. There simply is no one size fits
all solution.
I will bring the results of the field testing with me on October 11. Thank you for
your continuous help. You have been great to work with.
Sincerely,
Ann S. Closser
Cc: Mr. David Kennard, Verizon Wireless Radio Frequency Engineer
Ms. Jane Johnson, Verizon Wireless Real Estate Analyst
A3A~S
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Jl
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Colorado RSA No. 3 Limited Partnership
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
CO3 Castle Creek Alt. 1
(Space above this line for Recorder's use.)
MEMORANDUM OF OPTION AND LEASE AGREEMENT
THIS MEMORANDUM OF OPTION AND LEASE AGREEMENT
("Memorandum") evidences that an Option and Lease Agreement was entered into as of the__
day of ,20 , by and between the City of Aspen, a
Colorado home rule municipality ("LESSOR"), and Colorado RSA No. 3 Limited Partnership
d/b/a Verizon Wireless ("LESSEE"), for that certain real property located the City of Aspen,
County of Pitkin, State of Colorado, as more particularly described in Exhibit "A" attached hereto
and made part hereof ("LESSOR's Property"), together with a right of access and to install and
maintain utilities, for an initial term of five (5) years commencing on ,
20 , which term is subject to certain rights to extend by LESSEE.
IN WITNESS WHEREOF, LESSOR and LESSEE have duly executed this
Memorandum of Option and Lease Agreement as of the day and year first above written.
LESSOR: LESSEE:
City of Aapen
Colorado RSA No. 3 Limited Partnership
dPo/a Verizon Wireless
Date:
By: Verizon Wireless (VAW) LLC
d/b/a Verizon Wireless, its General Partner
By:
Name: Keith A. Surratt
Title: West Area Vice President - Network
Date:
I:\V~V-2001~519 CO3 Castle Creek Alt. BD~csWlemo of Option & Lease FINAL.doc
CO3 Castle Creek Alt. 1
STATE OF COLORADO
COUNTY OF<~II~ ~_
SS.
The foregoing Memorandum of Option and Lease Agreem_,.eCt was .~:l~o~wledge_d b~efore
mpx..th~.s.' /~4~day ofttDf--.-~l~ ,2005, by 'C~4g, o~ E::~-,C-ccSr~ as
~, of and on behalf of the City of A~
,4~ '~ . . .~. . ':.' ; D O,..,'N~
Witness my hand and official~1,~:; ~/~:::~
My commission expires:
Notary Public
STATE OF A~ZONA )
) SS.
CO~TY OF ~COPA )
On this __ day of ,2005, before me, the undersigned, a
Notary Public in and for the State of Arizona, duly commissioned and sworn, personally
appeared Keith A. Surratt to me known to be an authorized representative of Verizon Wireless
(VAW) LLC d/b/a Verizon Wireless, a limited liability company, general partner of Colorado
RSA No. 3 Limited Partnership d/b/a Verizon Wireless, a limited partnership, that executed the
foregoing instrument, and acknowledged said instrument to be the free and voluntary act and
deed of Verizon Wireless (VAW) LLC d/b/a Verizon Wireless, general partner of Colorado RSA
No. 3 L~'lnited Partnership d/b/a Verizon Wireless, a limited partnership, for the uses and
purposes therein mentioned, and on oath started that he is authorized to execute the said
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
Print or Type Name:
Notary Public in and for the State of AZ, residing at
My appointment expires:
I:\'¢~V-200 B519 CO3 Castle Creek Alt. l~3ocskMemo of Option & L~ase FINAL.doc
CO3 Castle Creek Alt. 1
Exhibit "A"
(Legal Description of LESSOR's Property)
Lot 25,
CITY OF ASPEN WATER TREATMENT PLANT AND AFFORDABLE HOUSING
PROJECT S.P.A. AND SUBDWISION, according to the Plat thereof filed January 8, 1997 in
Plat Book 41 at Page 41.
C03 Castle Creek Alt. I-A
Exhibit D
(Letter of consent dated July 27,2006)
Page I of2
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July 27. 2006
VIA ELEcrRONICMAlL
Mr. Betttley Henderson
Assistant City Manager
City of Aspen
130 South GalelUl Street
Aspen, COlorado 81611
RB: Option IIlId Lease Agreement between City of Aspen and Verizon
Wireless regarding certain real pr:operty located at 500 Doolittle Drive.
Aspen, Colorado 816 I 1 ("Property")
Our Client. Colorado llSA No. 3 Limited Partnership d/b/a Verizon Wireless
Our FileNo.: V-2001-519
Dear Mr. Henderson:
This firm represents Colorado RSA No.3 Limited partnerShip, d!bIe. VerizoD Wueless
("VVN''), the Jessee under that certain Option &; Lease Agreemellt dated November 10.2005.
("Lease'') with the City of Aspen ("City''). Any ClIPi.tamed teJ:lDS uot otherWise defined in this
correspondence shall have the meaning ascribed to such termS by the Lease.
In pteparlng for the constrUction of the Premises, Qwest communica.tions. Inc,
("QWest"), informed VZW that Qwest would not provide telephone servIces to the Premises
from the telephone pedestal identified in the Survey: Ra1b.er, Qwest desireS to provide telephone
service to the Premises from a pedestal situated outside the boundaries of the Property.
VZW will agree to access telephone services from this source and undertake the
obligation to inStall the necessary conduit lll1d cable within a new five-foot (5)' otiIity easem.ent
as reflected on the revised survey attached hereto ("survey'').
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I:\V\V.200I\969 C03 Castle Creek, All. IA\Docs\Amendment FINAL 09_II-06.DOC
C03 Castle Creek Alt. I-A
. ,
Exhibit D
(Letter of consent dated July 27, 2006)
Mr. Bentley Hendmon
Assmant City Manager
City of Aspen
July 27. 2006
Page 2
Page 2 of2
We understlll1d the City requested that the original Survey to the Lease be replaced by the
new Survey attaChed to this correspondence to reflect the loca.tion of the new utility casement.
By executing a copy of this letter, the City acknowicdges and consents to substitution of the
Survey for Exhibit C and acknowledges that VZW will immediale1y commence eonstrUction of
the Site. In the interim. VZW will prepare a fonnal Fits! Amendment to !he Lease for the City's
signature to memorialize the substitution and repJ.acement of Exhibit C of the Lease with the
Survey .
please execute a copy of this letter indicating the City's aPproval of the foregoing termS
and return a copy to !he undersigned at your earUest convenience. We will immediately prepare
a formal amendment to the Lease and forward it to you shortly. In the meantime should you
have any questiollS, please do not hesitate to contact me.
Sincerely yours,
~
W.H. Allen Shelden
CONSENT AND ACl(NOWLEnGEMENT
By execution below, the City of Aspen hereby acknowledges and coDSllllts to the termS
and agreements contained herein.
By:
t City Manager
City of Aspen
W AS/tned
Enclosure
c:c: Diana Feathers, Verizon Wireless
AJ1J1 Closser, Closser COnsUlting
1~Y\V.2001\S19 C03 CUIle Oed: A1t.l\Om\Or.yolAJpt:!!I. 7.17-C6(l)~.iae
1:\V\V.2001\969 em Castle Creek. All. IA\Docs\Amendment FINAL 09_1I-06.DOC
C03 Castle Creek Alt. i-A
FIRST AMENDMENT TO OPTION AND LEASE AGREEMENT
This First Amendment to Option and Lease Agreement ("Amendment") is made thisdJ,e1
day of ~, 200", by and between the City of Aspen., a Colorado home rule municipality
("LESS~R"), and Colorado RSA No. 3 Limited Partnership d/b/a Verizon Wireless
("LESSEE"). LESSOR and LESSEE are at times coUectively referred to hereinafter as the
"Parties" or individually as the "Party."
REClT ALS
A. LESSOR and LESSEE entered into an Option and Lease Agreement dated
November 10,2005 (the "Agreement"). Pursuant to the Agreement, LESSOR leased a portion of
that certain real property located in the City of Aspen, County of Pitkin, State of Colorado, more
particularly described in Exhibit A hereto (the "Property") for the purpose of constructing,
operating, and maintaining a communications facility (coUectively, the "Premises"). The
Premises are more substantiaUy described in Exhibit B hereto.
B. LESSOR and LESSEE desire to modify the Agreement to relocate the utility
easement.
NOW, THEREFORE, in consideration of the facts contained in the Recitals set forth
above, the mutual covenants and conditions below, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as foUows:
AGREEMENT
\. The utility right-of-way as provided in the Agreement shaU be relocated to a five foot
(5') wide utility right-of-way across the Property more particularly described in Exhibit C-l
attached hereto and made a part hereof. Exhibit C of the Agreement is hereby replaced with
Exhibit C-l to reflect the relocation ofthe utility right-of-way.
2. LESSOR provided written consent to the relocation of the easement under
correspondence dated July 27, 2006 (a copy of which is attached hereto and made a part hereof as
Exhibit D); accordingly, the effective date of this Amendment shaU be retroactive to July 27,
2006.
3. Except as specificaUy modified by this Amendment, aU of the termS and
conditions of the Agreement shaU remain in fuU force and effect. In the event of a conflict
between any term and provision of the Agreement and this Amendment, the terms and provisions
of this Amendment shaU contro\. In addition, except as otherwise stated in this Amendment, aU
initiaUy capitalized terms will have the same respective defined meaning stated in the
Agreement. AU captions are for reference purposes only and shaU not be used in the construction
or interpretation of this Amendment.
1:\V\Y_2001\969 C03 Castle Creek, All. IA\Docs\Amendment FINAL 09-1 I.06.DOC
C03 Castle Creek Alt. i-A
IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their
respective seals the day and year first above written.
LESSOR:
The City of Aspen
~-
By: ;
Name:' IV\ . .
Title: ().. . . l^..)Oo(u~-S
Date: ()0\1)0ffi n.. UXJb
LESSEE:
Colorado RSA No.3 Limited Partnership
d/b/a Verizon Wireless
By: Verizon Wireless (VA W) LLC d/b/a Verizon
::rel:tjG:iaQ1:~
Name: Keith A. Surratt
Title: West ~ea Vice President - Network
Date: ~ I ~ If) '1
I I
2
1:\V\V-2001\969 em Castle Creek, All. IA\Docs\Amendmenl FINAL 09-1 1-06.DOC
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C03 Castle Creek Alt. i-A
Exhibit A
(Legal Description of Property)
Lot 25,
CITY OF ASPEN WATER TREATMENT PLANT AND AFFORDABLE HOUSING
PROJECT S.PA AND SUBDIVISION, according to the Plat thereof filed January 8,1997 in
Plat Book 41 at Page 41.
3
1:\V\V-2001\969 em Castle Creek, All. lA\Docs\Amendment FINAL 09_II_06.DOC
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VerlZRllwireless
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C03 Castle Creek Alt. i-A
Exhibit D
(Letter of consent dated July 27, 2006)
Page i of2
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July 27, 2006
Y1A ELECTRONICMAlL
Mr. BeMIey Henderson
Assistant City Manager
City of Aspen
130 South Galena Street
Aspen, COlorado 8161\
RE: Option and Lease Agreement between City of Aspen and verizon
Wireless regarding certain real property located at 500 Doolittle Drive,
Aspen, Colorado 8161 1 ("Property")
OUr Client: Colorado RSA No.3 Limited Partnership d/b/a Verizon Wueless
Our File No.: V-2001-S19
Dear Mr. Henderson:
This firm rcprcstntl; Colorado RSA No.3 Limited paJ1lleI'5hip, d!bIa VerizoD Wueless
("VZW"" the lessee under that certain Option & Lease Agrceme.nt dated November 10, 200S,
("Lease") with the City of Aspen ("City"). Any capita&cd terl1IS oat otherWise defined in this
correspondence shall have the meaning ascribed to such termS by the Lease.
In preparing for the constrUction of the Premises, Qwest Communications, Inc.
(uQwest"), Informed VZW that Qwcst would not provide telephone services to the Premises
from the telephOl1C pcdestalldentified in the Survey; Ra1her, Qwest desires to provide telephone
service to the Premises from a pedestal situated outside the bounclarles of the Property.
V'DN will agree to access telephone services from this source and undertake the
obligation to inStall the necessary conduit and cable within a new five-foot (S)' utility easement
as reflected on fue revised survey attached hereto ("survey'').
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C03 Castle Creek Alt. i-A
I
Exhibit D
(Letter of consent dated July 27,2006)
Mr. Bentley Henderson
AS5istant City Manager
City of Aspen
July 27, 2006
Page 2
Page 2 of 2
We understand the City requested that the original surVey 10 the Lease be replaced by the
new SUIVey attaChed to this correspondence to reflect the location of tbe new utility easement.
By executing a copy of this letter, the City acknowledges and consents to substitution of lhe
Survey for Bxhibit C and acknowledges that VZW will immediately commence constrUction of
the Site. In the interim, VZW will prepare a formal First Amendment to the Lease for the City's
5ignature to mCJIlorialize the substitution and Iqllaccll1ent of Exhibit C of the Lease with the
Survey.
please execute a copy of Ibis letter indicating the City's aPproval of the tingoing ten1lS
and return a copy to the undersigoed at your earlIest convenience. We will imIIlediately prepare
a formal amendment to the Lease and forward it to you shortly. In the meantime should you
have any questions. please do not hesitate to contact me.
Si~
W.H. AlleIn Shelden
CONSENT AND ACl{NOWLEDGEMENT
By execution below, the City of Aspen hereby acknowledges and consents to the tenus
and agreements contained herein.
By:
City Manager
City of Aspen
W AS/med
Enclosure
ec: Diana Feathers, VerizOB Wireless
AM Closser, Closser ConsUlting
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1:\V\V -2001 \969 C03 Castle Creek, Alt. 1 A\Docs\Amendment FINAL 09.11-06.DOC