Loading...
HomeMy WebLinkAbout09134RESOLUTION NO. 9134 A RESOLUTION APPROVING AN AMATEUR RADIO ANTENNA LEASE AGREEMENT BETWEEN THUNDERBOLT AMATEUR RADIO ASSOCIATION, A NONPROFIT CORPORATION AND THE CITY OF PUEBLO, AND AUTHORIZING THE PRESIDENT OF THE COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1 The Amateur Radio Antenna Lease Agreement dated October 10, 2000, between Thunderbolt Amateur Radio Association, a nonprofit corporation, and the City of Pueblo, a Municipal Corporation (the "Agreement "), a true copy of which is attached hereto and incorporated herein by reference, having been approved as to form by the City Attorney, is hereby approved. SECTION 2 The President of the City Council is hereby authorized to execute the Agreement on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk is directed to affix the Seal of the City thereto and attest same. ATTEST: City Jerk INTRODUCED: October 10, 2000 Al Gurule Councilperson APP VED: President of the City Council AMATEUR RADIO ANTENNA LEASE AGREEMENT THIS AMATEUR RADIO ANTENNA LEASE AGREEMENT (hereinafter referred to as the "Agreement" or the "Lease ") is entered into this 10th day of October, 2000, by and between the City of Pueblo, a municipal Corporation (hereinafter referred to as the "City "), and the Thunderbolt Amateur Radio Association, a Colorado nonprofit corporation (hereinafter referred to as "Lessee "). WITNESSETH: WHEREAS, Lessee represents that it is a Colorado nonprofit corporation in good standing organized for the purpose of serving, promoting and sponsoring amateur radio activities, including the provision of public service communications and facilitation of functions of the Amateur Radio Emergency Service; and WHEREAS, the activities of Lessee provide public benefit to the citizens of Pueblo and to southern Colorado; and WHEREAS, Lessee is in need of a site on which to place its amateur radio communications tower antenna and ancillary equipment (collectively referred to as the "Facilities ") which will allow for amateur radio communications throughout Pueblo County for Lessee's various functions and activities; and WHEREAS, the City is the owner of a certain building which is suitable to the needs of the Lessee and is willing to allow the placement of the Lessee's Facilities upon said building. NOW, THEREFORE, in consideration of the foregoing and the terms and conditions contained herein, the parties agree as follows: 1. Premises City owns a parcel of land and a building within the City of Pueblo, County of Pueblo and State of Colorado commonly known and numbered as 1551 Bonforte Boulevard, Pueblo, Colorado, 81001, hereinafter referred to as the "Property." City uses the Property as a Fire Station, for emergency services and as the administrative offices for the Pueblo Fire Department. Upon the Property is a portion of the Fire Station known and referred to as the Hose Tower. City hereby leases to Lessee and Lessee hereby leases from City, on a non - exclusive basis, certain space upon the west side of the Hose Tower, the precise size and location of which shall be hereafter mutually selected and agreed upon by the City Manager, or his designee, and Lessee (Hereinafter referred to as the "Premises "), and subject to Lessee's full and faithful compliance with all the terms and conditions of this Agreement, grants to Lessee the non - exclusive right to install and maintain its Facilities upon the Premises. 2. Use. The Premises may be used by Lessee only to install, maintain, repair, replace, remove and operate the Facilities, as further defined and limited in this paragraph, upon the Premises for the purposes of an amateur radio antenna facility and uses incidental thereto in connection with the provision of lawfully authorized amateur radio services. The Facilities authorized upon the premises shall be strictly limited to (a) one (1) mast and/or tower, not to exceed eleven (11) feet in height, (b) one (1) approximately eight (8) foot vertical antenna intended for radio reception and transmissions in the two (2) meter amateur radio band, and (c) ancillary repeater equipment, fasteners and ground and power supply wiring. At no time shall output power from Lessee's Facilities exceed 75 watts. Lessee shall make all arrangements for installation, by licensed contractors, of electrical power from the public right of way adjacent to the Property, to the leased premises, and the installation of a separate electrical service meter for power to Lessee's facilities. 3. Tests and Construction (a) Subject to Lessee's full compliance with the conditions precedent and all other terms and conditions set forth in this Agreement, Lessee shall have the right at any time following the full execution of this Agreement and filing of insurance certificates complying with paragraph 11 of this Agreement to enter upon the Property for the purpose of making necessary engineering surveys, inspections, and other reasonably necessary tests and to install the Facilities; provided, however, that any such tests and installation shall be at Lessee's sole cost and expense. Prior to installation of the Lessee Facilities on the Hose Tower, Lessee shall obtain, and pay for any and all costs associated with, appropriate structural analyses to determine if the physical condition of the Property and Hose Tower is suitable for Lessee's permitted uses. (b) None of the Facilities shall be installed on the Property nor shall any construction pertaining to the Facilities commence until Lessee has submitted its construction and installation plans and list of contractors and subcontractors to City in writing and such plans and list have been approved in writing by City. Lessee shall not alter any plans so approved without following the same procedures. Lessee shall be responsible for installing and grounding all external and internal wiring and cabling installed by Lessee in accordance with applicable electrical and building codes. Lessee shall obtain City's prior written approval of such grounding plans. (c) Lessee understands and acknowledges that the Premises is adjacent to a Fire Station and in proximity to a public park and residential neighborhood and that, consequently, the Facilities must be constructed in a manner that is aesthetically appropriate. City may therefore require that any masts or other structures which are part of the Facilities be constructed so as to match nearby City facilities, be screened by landscaping, and otherwise be of color, texture and appearance which is compatible with surrounding land use. During the entire Term of the Lease, including any Renewal Term, Lessee shall keep the Premises in good and proper order and appearance. 4. Term The Term of this Agreement shall be for a period of five (5) years commencing on the date of this Agreement and expiring on the fifth anniversary of the date of this Agreement. 5. Consideration Lessee shall pay to City as rent the sum of Ten Dollars ($10.00) per annum (hereinafter referred to as the " Annual Rent "). Annual Rent shall be payable in advance, commencing within 10 days of the date of this Agreement, and thereafter on the first day of October of each year during the Term of this Agreement. 6. Facilities; Utilities; Access -2- (a) Lessee, at its sole cost and expense, shall erect, maintain and operate on the Premises its amateur radio facilities, including utility lines, transmission lines, electronic equipment, a radio transmitting and receiving antenna and supporting structures. All construction and installation work shall be performed in a good and workmanlike manner. Title to the Facilities shall be held by Lessee. The Facilities shall remain Lessee's personal property and are not fixtures. Lessee has the right to remove its Facilities at its sole expense before the expiration or earlier termination of the Agreement; provided, however, that Lessee is not in default of the Agreement and Lessee repairs any damage to the Property caused by such removal. (b) Lessee shall timely pay for the electricity it consumes in its operations at the rate charged by the servicing utility company. Lessee shall obtain, at its sole cost and expense, separate utility service from any utility company that will provide service to the Premises. Any access necessary for such power or other utilities will be at a location reasonably acceptable to City and the servicing utility company. City represents only that there is availability of electrical power within the public right of way adjacent to the Property. (c) Subject to all rules, regulations and orders promulgated or issued by the Fire Chief, Lessee, Lessee's members, employees, agents and subcontractors may enter on or across the Property, at the location or locations designated by City's Fire Chief, to obtain entry into the Premises for the purpose of constructing, installing, operating, maintaining and repairing its Facilities. Lessee shall not, without at least twenty -four (24) hours prior notice to City, perform or arrange to be performed installation, maintenance or repair of the Facilities on the Hose Tower. (d) Notwithstanding anything contained in this paragraph 6 or in paragraph 9(d) of this Agreement, any modifications of a structural nature made by Lessee with the approval of City, to any building or structure owned by City which is located upon the Property, shall be and remain the property of City and not of Lessee, and shall not be removed or further altered by Lessee without the express written consent of City. 7. Non - Interference (a) At City's request, Lessee shall perform an intermod and interference study at the Property and evaluate for interference with its operations of City's radio or wireless communications and the operations of other radio or wireless communications users at the Property. Lessee acknowledges that the existing uses and frequencies, as presently identified do not, if properly and lawfully operated, interfere with Lessee's use of the Premises, and that Lessee's use of the Premises will not interfere with such existing uses and frequencies. (b) Lessee further agrees that if Lessee's Facilities cause any measurable adverse interference with the operations of any existing radio or wireless communications users at the Property, or with any radio or wireless communications use hereafter authorized by City for the Property, Lessee shall immediately cause the elimination of such interference in a prompt and timely manner. If such measurable adverse interference by Lessee's Facilities with existing or subsequently authorized communications equipment cannot be eliminated within a reasonable length of time, but not to exceed twenty -four (24) hours after notice thereof, Lessee shall cease all operations. (c) Following the initial installation of the Lessee Facilities, Lessee agrees not to install any equipment on the Premises or change the frequency, power, or type of its existing equipment on the Premises without first submitting to City a written proposal regarding the proposed configuration and obtaining the written consent of City. (d) Lessee acknowledges and agrees that City may, at any time, allow additional third parties to co- locate radio or wireless telecommunications equipment upon the Property or the Premises. Lessee agree to cooperate with City and any such third party regarding technical requirements and in order to avoid any adverse interference to the operations of the City and such third party radio or wireless telecommunications users. City shall be entitled to all revenue derived from the co- location of any such additional facilities located upon the Premises or the Property. (e) If any measurable adverse interference with the operation of Lessee's Facilities at the Property is caused by City or anyone now or in the future holding a lease /license or other interest from or under City due to improper or unlawful operation, or any subsequent change to or addition of equipment or improvements by City or any such other wireless communications users at the Property, City agrees reasonably to cause the elimination of same in a prompt and timely manner or notify the responsible user causing such interference to cease same. If such measurable adverse interference with Lessee's Facilities by City or other wireless communications users at the Property cannot be eliminated within a reasonable length of time, but not to exceed thirty (30) days after notice thereof, Lessee may terminate this Agreement upon thirty (30) days prior written notice to City, without further obligation hereunder. Lessee agrees that City shall not be liable to Lessee for damages, whether foreseeable or not, arising from or related to any such interference, and that termination shall be Lessee's sole and only remedy for interference which is not eliminated in accordance with this subparagraph (e). 8. Taxes City is an exempt entity with respect to real property taxes. However, if any of Lessee's Facilities are subject to such taxes, the same shall be promptly paid by Lessee. Lessee shall also pay all other real property taxes which may be assessed as a direct result of Lessee's improvements to the Property. 9. Default by Lessee (a) Lessee shall be in default under this Agreement if it fails to perform any material duty or obligation under this Agreement and does not cure or remedy such failure to perform within ten (10) days after receipt of written notice with respect thereto; provided, however, that if such failure to perform shall necessitate longer to cure than ten (10) days, then such cure period shall be extended for such time as is reasonably necessary to cure such failure to perform, but only so long as such efforts to cure are commenced within ten (10) days after receipt of written notice from the City and thereafter proceed diligently and in good faith. (b) Upon the occurrence of a default by Lessee, the City may pursue any and all M remedies available under applicable law and any one or more of the following remedies, separately or concurrently or in any combination, without further notice or demand whatsoever: (i) Termination of this Agreement by giving the Lessee written notice of such termination, in which event this Agreement shall be terminated at the time designated in the notice; or (ii) The recovery from the Lessee of all costs and expenses incurred by the City in enforcing its rights and remedies under this Agreement, including reasonable attorneys' fees and expenses. (c) The termination of this Agreement by reason of the Lessee's default shall not relieve the Lessee of any of its duties and obligations accrued under this Agreement prior to the effective date of such termination. (d) At the expiration or termination of this Agreement for any reason, Lessee shall surrender to City the Premises, remove the Lessee Facilities, and shall restore the Premises to substantially the same condition existing prior to execution of this Agreement, except for ordinary wear and tear. If Lessee fails to remove the Lessee's Facilities as required hereunder, the Lessee's Facilities shall be subject to disconnection, removal and storage by City. In such event, Lessee shall pay to City upon written demand therefor, the disconnection, removal and storage expenses incurred by or on behalf of City. In the event the Lessee's Facilities remain on the Premises following termination or expiration of this Agreement (even if same have been disconnected), Lessee shall pay to City holdover rent equal to commercially reasonable rent paid by private companies to the City for antenna site leases, prorated from the date of termination to the date the Lessee Facilities are removed from the Premises by Lessee. The requirements of this subparagraph (d) shall survive the termination of this Lease. 10. Termination (a) If Lessee reasonably determines at any time after the commencement date that the Premises are not appropriate or suitable for its operations for technological reasons, it may upon sixty (60) days prior notice to City terminate this Lease; (b) Lessee shall have the right to immediately terminate this Agreement if any of the following occurs, by giving written notice to City of such termination: (i) Any governmental or non - governmental license, permit, consent, approval, easement or restriction waiver that is necessary to enable Lessee to install and operate its Facilities cannot be obtained or renewed at an expense or within the time period acceptable to Lessee; (ii) Any communications facilities, or any communications facilities or other structures of any kind now or hereafter located on or in the vicinity of City's Property, -5- interfere with Lessee Facilities and Lessee is unable to correct such interference through reasonably feasible means; and (iii) Lessee's Facilities are totally or partially destroyed by fire or other casualty at any time so as, in Lessee's sole discretion to hinder Lessee's operation and use of Lessee Facilities. 11. Insurance (a) Lessee shall carry during the term of this Agreement, at its own cost and expense, the following insurance: (i) "All Risk" property insurance which insures the insuring party's property for its full replacement cost; and (ii) comprehensive general liability of $1,000,000.00 with a combined limited for bodily injury and /or property damage for any one occurrence, and (iii) Workers' Compensation Insurance covering its employees in accordance with the requirements of Colorado law. (b) Lessee shall name the City as an additional insured under its liability policy and require its insurance company to give at least thirty (30) days' written notice of termination or cancellation of the policy to the additional insured. A certificate of such insurance, together with such endorsement, shall be delivered to the City within thirty (30) days from the execution of this Agreement and before the expiration of any term thereof from an insurance company authorized to do business in the state in which the Property is located. (c) City is a governmental entity that enjoys certain immunities under law. Nothing in this Agreement is intended, nor should it be construed, to create or extend any rights, claims or benefits or assume any liability for or on behalf of any third party, or to waive any immunities or limitations otherwise conferred under or by virtue of federal or state law, including but not limited to the Colorado Governmental Immunity Act, C.R.S. §24 -10 -101, et 5-eq. 12. Indemnity Lessee agrees to compensate City for damages and to indemnify, defend and hold City harmless from all claims (including reasonable attorneys' fees, costs and expenses of defending against such claims) incurred by City and arising, wholly or in part, from the willful misconduct or negligent acts or omissions of Lessee or Lessee's agent, employees, engineers, contractors, subcontractors or invitees in or about the Premises or arising from Lessee's default pursuant to this Agreement. Except as otherwise specifically provided herein to the contrary, it is understood and agreed that all property kept, installed, stored, or maintained in or upon the Premises by Lessee shall be so installed, kept, stored, or maintained at Lessee's risk except to the extent damage or loss to same is the result of City's sole negligence. City shall not be responsible for any loss or damage to equipment owned by Lessee which might result from tornadoes, lightning, wind storms, hail, flying debris, or other acts of God. The indemnities described in this paragraph shall survive termination of this Agreement. 13. Environmental Provisions -6- (a) For the purpose of this Lease, "Hazardous Materials" means any hazardous or toxic substance, material or waste which is or become regulated by any local government authority, the State of Colorado or the United States government and shall include, but not be limited to (1) substances defined as "hazardous waste," "restricted hazardous waste," "hazardous substance" or "hazardous material" under any applicable federal, state or local law or regulation ( "Environmental Regulations "), (2) asbestos - containing materials, (3) PCBs, (4) petroleum or petroleum based products, and (5) lead. (b) Lessee will comply with Environmental Regulations that are applicable to the Lessee and its use of the Premises and the Property. No activity shall be undertaken by the Lessee, its employees, agents, licensees, invitees, contractors or subcontractors, on all or any portion of the Premises or the Property which would cause or permit: (i) the presence, use, generation, release, discharge, storage or disposal of any Hazardous Material in, on, under, about, or from the Premises or the Property or any part thereof in violation of any Environmental Regulations; (ii) any portion of the Premises or the Property to become a hazardous waste treatment, storage or disposal facility without receiving proper governmental authorization, and in compliance with all environmental regulations; or (iii) the discharge of pollutants or effluents into any water source or system, or the discharge into the air of any emissions without receiving proper governmental authorization, and in compliance with all Environmental Regulations, including, without limitation, the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et sea. and the Clean Air Act, 42 U.S.C. Section 7401 et sea. (c) Lessee agrees to indemnify, defend and forever hold harmless City, its agents, successors, and assigns from all claims, losses, damages, expenses and costs, including, but not limited to, attorneys' fees, remedial and cleanup costs, incurred by reason of the use, storage, generation, release, discharge, maintenance, disposal, or removal of Hazardous Materials in, on, under, about, or from the Premises or the Property, or any part thereof, by Lessee, its employees, agents, licensees, invitees, contractors and subcontractors, irrespective of whether the same occurs or has occurred during the term of this Lease or subsequent thereto. (d) The provisions of this paragraph 13 shall expressly survive the expiration of the Term or other termination of this Lease. 14. Assignment The rights of the parties under this Agreement may not be assigned without the prior written consent of the other party. In no event may Lessee sublet all or any part of its interest in the Premises. This Agreement shall be binding upon and enforceable against, and shall inure to the benefit of, the parties hereto and their respective legal representatives, successors and permitted assigns. 15. Maintenance and Repairs (a) Lessee shall perform all repairs necessary or appropriate to keep its Facilities on or about the Premises or located on any appurtenant access to the Premises in good and tenantable condition. -7- (b) City shall maintain City's improvements in good order and repair, wear and tear, damage by fire, the elements and other casualty excepted. Damage to City's improvements resulting from the acts or omissions of Lessee shall be repaired by Lessee, at Lessee's cost and expense unless otherwise provided herein. 16. Tower Marking and Lighting Requirements /AM Tower Compliance Lessee shall be responsible for compliance with all marking and lighting requirements of the Federal Aviation Administration ( " FAA ") and the Federal Communications Commission ( " FCC "). 17. Miscellaneous (a) This Agreement constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other agreements concerning the subject matter contained herein. Any amendments to this Agreement must be in writing and executed by both parties. (b) If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (c) This Agreement shall be binding upon and inure to the benefit of the successors and permitted assignees of the respective parties. (d) Any notice or demand required to be given herein shall be made by first class United States mail or recognized overnight courier to the address of the respective parties set forth below: Lessee: City: Thunderbolt Amateur Radio Association City of Pueblo Attention: Gerald E. Tucker, President l City Hall Place 1901 Constitution, Space 25 Pueblo, CO 81003 Pueblo, CO 81001 Attn: City Manager Copy to: Thomas E. Jagger City Attorney 127 Thatcher Building Pueblo, CO 81003 Copy to: Director of Transportation City of Pueblo 350 S. Grand Avenue Pueblo, CO 81003 In City or Lessee may from time to time designate any other address for this purpose by written notice to the other party. All notices hereunder shall be deemed received upon mailing or deposit with such overnight courier. (e) This Agreement shall be governed by the laws of the State of Colorado. (f) This Agreement may be executed in duplicate counterparts, each of which shall be deemed an original. (g) It is the intent of the parties that the Facilities authorized under this Agreement constitute a permitted use upon the Premises pursuant to the provisions of Pueblo Municipal Code §17-4-63(b)(1). IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. City: City of P lo, a Munici 1 Corporation By Name: Corinne Koehler Title: President of the City Council LESSEE: Thunderbolt Amateur Radio Association, a Col ado n rofit corporation By Name: Gerald E. Tucker Title: President Attest:_ , City C104k -9-