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HomeMy WebLinkAboutresolution.council.172-17 RESOLUTION #172, (Series of 2017) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A LEASE BETWEEN THE CITY OF ASPEN AND BUREAU OF LAND MANAGEMENT. 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 communications use, between the City of Aspen and Bureau of Land Management, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that a lease for communications use, between the City of Aspen and Bureau of Land Management, a copy of which is annexed 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 11'h day of December, 2017. �1 / I`1 Steven Skad n, Mayor I, Linda Manning, duly appointed and acting City lerk 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,arep Ger , 2017. Linda Manning, City Cler Form 2800-18 Issuing Office LLCON04000 (Revised March 2004) Serial Number COC 78639 THE UNITED STATES Department of the Interior Bureau of Land Management COMMUNICATIONS USE LEASE City of Aspen of 130 S.Galena Street (Lessee Name) - . (Billing Address- 1) Aspen CO 81611 (Billing Address-2) (City) (ST) (Zip Code) THIS LEASE,dated this day of I QC Q✓���� ,2017,by and between the UNITED STATES OF AMERICA,acting through the Bureau of Land Management,Department of the Interior(hereinafter called the"United States" or"Bureau of Land Management'),as authorized by the Act of October 21, 1976,and implementing regulations(90 Stat.2743;43 U.S.C. 1701,et seq.;43 CFR 2800),and City of Aspen,its agents,successors,and assigns(hereinafter called the"Lessee"). The United States and the Lessee are jointly referred to herein as the"Parties." As used herein,the"Authorized Officer"refers to the Bureau of Land Management official having the delegated authority to execute and administer this lease. Generally,unless otherwise indicated,such authority may be exercised by the Field Manager or District Manager for the public lands wherein the following described lands are located. The United States, for and in consideration of the terms and conditions contained herein and the payment to the United States of a rental in advance by the Lessee,does hereby grant to the Lessee a lease for the following described lands in the County of Pitkin,State of Colorado: Sixth Principal Meridian,Colorado T. 10 S.,R.84 W., sec.7,lot 22. (hereinafter called the"property"). The Lessee accepts this lease and possession of the property,subject to any valid existing rights, and agrees not to use the property,or any part thereof,except as a site for only the construction,operation,maintenance,and termination of a communications facility. The location of the property is shown generally on the site plan for the Hunter Creek Communications Site,which is attached and made part hereof as Attachment A. The facilities specifically authorized under this lease are shown on the plat contained in Attachment B.Facilities specifically authorized by this lease are: • 1 (1)three(3)foot microwave dish attached to side of existing structure • 40 foot wide by 16 foot long existing structure with 80 square foot communication room. • 50 kW natural gas fired back-up generator • Ancillary I"gas line to service generator • Ancillary access road The dated and initialed exhibit(s),attached hereto,are incorporated into and made a part of this instrument as fully and effectively as if they were set forth herein in their entirety. - The parties agree that this lease is made subject to the following terms and conditions. 1.TENURE,RENEWAL AND TRANSFERABILITY A.This lease will terminate at one minute after midnight on 12/31/2046. Termination at the end of the lease term occurs by operation of law and does not require any additional notice or documentation by the Authorized Officer. This lease is not renewable;but the Lessee has the right to request a new lease pursuant to paragraph"C"below. B.The Lessee will undertake and pursue with due diligence the operation that is authorized by this lease. To the extent specified in Attachment A,B,and stipulations. This lease will terminate if operation does not commence by that date,unless the parties agree in writing,in advance,to an extension of the commencement date. C.If the Lessee desires a new lease upon termination of this lease,the Lessee must notify the Authorized Officer accordingly,in writing. The notice must be received by the Authorized Officer at least one year prior to the end of the lease term. The Authorized Officer will determine if the use should continue and,if it is to continue,if a new lease should be issued to the Lessee and under what conditions. The Authorized Officer will require payment of any amounts owed the United States under any Bureau of Land Management authorization before issuance of another authorization. D.This lease is assignable with prior written approval of the Authorized Officer. Renting of space does not constitute an assignment under this clause. 11.RENTAL - A.The Lessee must pay in advance an annual rental determined by the Authorized Officer in accordance with law,regulation;and policy. The annual rental will be adjusted by the Authorized Officer to reflect changes in fair market value,annual adjustments using the Consumer Price Index-Urban(CPI-U),changes in tenant occupancy,or phase-in of rental,if applicable. B.After the initial rental period rental payments are due at the close of the first business day after January 1 of each calendar year for which a payment is due. Payments due the United States for this use must be received at the Bureau of Land Management office as noted on the billing statement in the form of a check or money order payable to Bureau of Land Management/DOI. Credit card payments(VISA and MasterCard)can be made in person,through the mail,or by telephone. This lease will terminate automatically if accrued rent is not received by the Bureau of Land Management within 90 calendar days after the initial due date for the payment of such rent. C.Pursuant to the Federal Claims Collection Act of 1966,as amended,31 U.S.C.3717,et seq,regulations at 7 CFR Part 3,Subpart B and 4 CFR Part 102, an interest charge will be assessed on any amount due but not received by the due date. Interest will accrue from the.date the payment was due. Administrative costs will also be assessed in the event that two or more billing notices are required for unpaid accounts. In addition,an administrative penalty at a percentage rate prescribed bylaw or regulation will be assessed for failure to pay any portion of the debt that is more than 90 days past due. This paragraph survives the termination of this lease,regardless of cause. _ Other late fee charges may be assessed in accordance with standard BLM accounting procedures and policy. D.Disputed rentals are due and payable on or before the due date. IB.RESPONSIBILITIES OF THE LESSEE A.The Lessee is authorized to rent space and provide other services to customers and/or tenants and must charge each customer/tenant a reasonable rental without discrimination for the use and occupancy of the facilities and services provided. The Lessee must impose no unreasonable restrictions nor any restriction restraining competition or trade practices. By October 15th of each year,the Lessee must provide the Authorized Officer a certified statement, listing all tenants and customers,by category of use,located within the facility on September 30th of that year. B.All development,operation and maintenance of the authorized facility,improvements,and equipment located on the property must be in accordance with stipulations in the communications site plan approved by the Authorized Officer. If required by the Authorized Officer,all plans for development, layout,construction,or alteration of improvements on the property as well as revisions of such plans, must be prepared by a licensed engineer,architect,and or landscape architect. Such plans must be approved in writing by the Authorized Officer before commencement of any work. After completion,as-built plans,maps,surveys,or other similar information will be provided to the Authorized Officer and appended to the communications site plan. C. The Lessee must comply with applicable Federal,State,county,and municipal laws,regulations and standards for public health and safety,environmental protection,siting,construction,operation,and maintenance in exercising the rights granted by this lease. The obligations of the Lessee under this lease are not contingent upon any duty of the Authorized Officer,or other agent of the United States,to inspect the premises. A failure by the United States,or other governmental officials,to inspect is not a defense to noncompliance with any of the terms or conditions of this lease. Lessee waives all defenses of laches or estoppel against the United States. The Lessee must at all times keep the title of the United States to the property free and clear of all liens and encumbrances. D. Use of communications equipment is contingent upon the possession of a valid Federal Communications Commission(FCC)or Director of Telecommunications Management/Interdepartmental Radio Advisory Committee(DTM/IRAC)authorization(if required), and the operation of the equipment is in strict compliance with applicable requirements of FCC or IRAC. A copy of each applicable license or authorization must at all times be maintained by the Lessee for each transmitter being operated. The Lessee must provide the Authorized Officer,when requested,with current copies of all licenses for equipment in or on facilities covered by this lease. E. The Lessee must ensure that equipment within his or her facility(including tenant and customer equipment)operates in a manner which will not cause harmful interference with the operation of existing equipment on or adjacent to the communications site. If the Authorized Officer or authorized official of the Federal Communications Commission(FCC)determines that the Lessee's use interferes with existing equipment,the Lessee must promptly take the necessary steps to eliminate or reduce the harmful interference to the satisfaction of the Authorized Officer or FCC official. F. When requested by the Authorized Officer,the Lessee must furnish technical information concerning the equipment located on the property. IV.LIABILITIES A. The Lessee assumes all risk of loss to the authorized improvements. B. The Lessee must comply with all applicable Federal,State,and local laws,regulations,and standards,including but not limited to, the Federal Water Pollution Control Act,33 U.S.C. 1251 et seq.,the Resource Conservation and Recovery Act,42 U.S.C.6901 et seq.,the Comprehensive Environmental Response,Control,and Liability Act,42 U.S.C.9601 et seq.,and other relevant environmental laws,as well as public health and safety laws and other laws relating to the siting,construction,operation,and maintenance of any facility,improvement,or equipment on the property. C. The Lessee must indemnify,defend,and hold the United States harmless for any violations incurred under any such laws and regulations or for judgments,claims,or demands assessed against the United States in connection with the Lessee's use or occupancy of the property. The Lessee's indemnification of the United States must include any loss by personal injury,loss of life or damage to property in connection with the occupancy or use of the property during the term of this lease. Indemnification must include,but is not limited to,the value of resources damaged or destroyed;the costs of restoration,cleanup,or other mitigation; fire suppression or other types of abatement costs;third party claims and judgments;and all administrative,interest,and other legal costs. This paragraph survives the termination or revocation of this lease,regardless of cause. D. The United States has no duty,either before or during the lease term,to inspect the property or to warn of hazards and,if the United States inspects the property,it will incur no additional duty nor any liability for hazards not identified or discovered through such inspections. This paragraph survives the termination or revocation of this lease,regardless of cause. - E. The Lessee has an affirmative duty to protect from damage the land,property,and interests of the United States. F. In the event of any breach of the lease by the Lessee,the Authorized Officer may,on reasonable notice,cure the breach at the expense of the Lessee. If the Bureau of Land Management at any time pays any sum of money or does any act which requires payment of money,or incurs any expense,including reasonable attorney's fees,in instituting,prosecuting,and/or defending any action or proceeding to enforce the United States rights hereunder,the sum or sums so paid by the United States, with all interests,costs and damages will,at the election of the Bureau of Land Management,be deemed to be additional rental hereunder and will be due from the Lessee to the Bureau of Land Management on the first day of the month following such election. V.OTHER PROVISIONS A. Nondiscrimination. The Lessee must at all times operate the described property and its appurtenant areas and its buildings and facilities,whether or not on the property,in full compliance with Title VI of the Civil Rights Act of 1964 and all requirements imposed by or pursuant to the regulations issued thereunder by the Department of the Interior and in effect on the date this lease is granted to the end that no person in the United States will,on the grounds of race,sex,color,religion,or national origin,be excluded from participation in,be denied the benefits of,or be subjected to discrimination under any of the programs or activities provided thereon. B. Termination and Suspension. 1.General. For purposes of this lease,termination and suspension refer to the cessation of uses and privileges under the lease. "Termination"refers to an action by the Authorized Officer to end the lease because of noncompliance with any of the prescribed terms,abandonment,or for reasons in the public interest. Termination also occurs when,by the -terms of the lease,a fixed or agreed upon condition,event,or time occurs. For example,the lease terminates at expiration. Termination ends the Lessee's right to use the public land for communication purposes. "Suspension" is a temporary action and the privileges may be restored upon the occurrence of prescribed actions or conditions. 2.This lease may be suspended or terminated upon breach of any of the terms or conditions herein or upon nonuse,or when in the public interest. Nonuse refers to a failure to operate consistently the facilities on the property for any period during the term in excess of 180 days. When suspended or terminated in the public interest,the Lessee will be compensated subject to the availability of appropriated funds. Compensation will be based upon the initial cost of improvements located on the lease,less depreciation as allocated over the life of the improvements as evidenced by the Lessee's Federal tax amortization schedules. 3.Except in emergencies,or in case of nonuse,the Authorized Officer will give the Lessee written notice of the grounds for termination or suspension and a reasonable time,not to exceed 90 days,to complete the corrective action. After the prescribed period,the Bureau of Land Management is entitled to such remedies as are provided herein. 4.Any discretionary decisions or determinations by the Authorized Officer on termination or suspension are subject to appeal in accordance with the regulations in Title 43,Code of Federal Regulations. C.Restoration 1.In the event the Authorized Officer decides not to issue a new lease,or the Lessee does not desire a new lease,the Lessee must,prior to the termination of this lease,restore and stabilize the site to the satisfaction of the Authorized Officer. 2.In the event this lease is revoked for noncompliance,the Lessee must remove all structures and improvements within a reasonable period as determined by the Authorized Officer,except those owned by the United States,and must restore the site as nearly as reasonably possible to its original condition unless this requirement is otherwise waived in writing by the Authorized Officer. 3.If the Lessee fails to remove all structures or improvements within the prescribed period,they will become the property of the United States and may be sold,destroyed,or otherwise disposed of without any liability to the United States. D.Members of Congress. No member of or Delegate to Congress or Resident Commissioner may benefit from this lease either directly or indirectly,except when the lease provides a general benefit to a corporation. E.Reservations. This lease is granted subject to the following reservations by the United States: _ 1.The right to all natural resource products now or hereafter located on the property unless stated otherwise herein,and the right to obtain,utilize,or dispose of such resources insofar as the rights and possession of the Lessee are not unreasonably affected. 2.The right to modify the communications site plan as deemed necessary. 3.The right to enter upon the lease and inspect all facilities to assure compliance with the conditions of this lease. 4.The right of the United States to use or to authorize the use of the property for compatible uses,including the subsurface and air space. In the event of any conflict between any of the proceeding printed clauses or any provisions thereof and any of the following clauses or any provision thereof,the preceding printed clauses control. ACCEPTED this 1` day of Z )Q Q-0 Mb 4e r ,20a,I,the undersigned have read,understand and accept the terms and conditions of this lease. Lessee IN WITNESS WHEREOF,the Bureau of Land Management,by its Authorized Officer,has executed this lease on the day and year first written above. UNITED STATES OF AMERICA - Acting Field Manager (Signature of Authorized Officer) (Title of Authorized Officer) Gloria Tibbetts (Printed Name of Authorized Officer) (Date)