HomeMy WebLinkAboutORDINANCE 01-10C C
ORDINANCE NO.01-10
AN ORDINANCE APPROVING A LEASE AGREEMENT FOR PROSPECT
MOUNTAIN RADIO SITE
TOWN OF ESTES PARK,COLORADO
WHEREAS,the Town of Estes Park and Heron LLC have agreed in a Lease
Agreement between the entities to lease the Prospect Mountain radio site and use of
the access road for the operation of radio transmission and reception systems owned by
the Town.
WHEREAS,the previous lease agreement expired on December 31,2009 that
entitled the Town to non-exclusive use of the site for operation of radio communication
systems listed in the lease,attached as Exhibit A.
NOW THEREFORE,BE IT ORDAINED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK,COLORADO,AS FOLLOWS:
1.The Lease by the Town of Estes Park of the Prospect Mountain Radio site
between the Town of Estes Park and Heron LLC,a copy of which is attached
hereto and incorporated herein by this reference,is hereby approved.The
officials of the Town of Estes Park are hereby authorized to execute the
Lease.
2.The adoption of this ordinance is hereby determined to be declared an
emergency in order for the lease to be in effect immediately for the
preservation of the health,safety,and welfare of the citizens of the Town;and
WHEREAS,in the opinion of the Board of Trustees an emergency exists,this
ordinance shall take effect and be enforced immediately after its passage,
adoption and signature of the Mayor.
INTRODUCED,READ,AND PASSED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK on this l’day of
___________,
2010.
DO
t .N
Town Clerk
0 0
I hereby certify that the above ordinance was introduced and read at a meeting of the
Board of Trustees on the l2?Jay of
_____________________,
2010,and
published in a newspaper of general publication in the Town of Estes Park,Colorado on
the dayof p,1ppho’.J ,2010.
z::\_\.°L,Z2’To Clerk
(Jj LEASE AGREEMENT (J)
THIS LEASE AGREEMENT is entered into this I “-day of icu3racc?0Ø,between
JOHN A.HERON (Personal Representative of the Estate of ROBERT HERON,Lessor)and THE
TOWN OF ESTES PARK,COLORADO (Lessee).
The parties agree as follows:
1.LEASE OF PREMISES
The Lessors do hereby lease to the Lessee the right to operate radio transmission and
reception systems located in building and towers owned by the Town of Estes Park,the National
Park Service and the U.S.Bureau of Reclamation all located on land owned by the Lessor;and to
use the access road across the Lessors’property for ingress and egress purposes,all located on
the Prospect Mountain radio site near Estes Park,Larimer County,State of Colorado,and all
subject to the following terms and conditions:
2.USE
The Lessee shall be entitled to non-exclusive use of the site for operation of transmission and
reception of radio communication systems listed in Exhibit “A”and access to the site.The site
shall only be used for the installation,operation and maintenance of communication equipment.
3.TERM
The term of this lease shall be for ten (10)one (1)year periods commencing on the first day of
January 2010 and ending on the 31st day of December 2020.The Town shall have the right to
terminate this lease agreement by giving Lessor sixty (60)days notice in writing prior to the end of
any calendar year.In said event,this lease shall terminate on December 3151 of that year.The
Lessee shall have the option to extend this lease for two (2)additional five (5)one (1)year periods.
The Lessee shall give the Lessor written notice of its intent to extend this lease at least six (6)
months prior to the base term,or any extended term,such notice to be in writing and delivered to
Lessors at the address specified in Paragraph 8 hereof.In the event that this lease is extended for
the additional period,all terms and conditions of this lease shall remain in force and effect.
4.RENT
Upon the commencement date,and annually thereafter,the Lessee shall pay the Lessors,as
rent,the sum of Four Thousand Twenty Nine Dollars and no/i 00 ($4,029.00)annually (rent).Rent
shall be payable on the first day of each 12-month period,in advance,to the Lessors at the
Lessors’address recited in Paragraph 8 hereof.The rent shall increase or decrease by $671.50
annually for each radio system installed or removed from the site in addition to those listed in
Exhibit “A”.
Lease Agreement 2009
Heron/Town of Estes Park
S pages 1
Unless other utually agreed,the annual rental increase shall be the itage increase
in the Consumer Price Index for Denver (City)Metropolitan Statistical Area.The L.essors shall be
responsible for communicating the amount of the rental adjustment to the Lessee and shall provide
supporting date,if any,upon which the adjustment is calculated.The percentage increase shall be
payable on the next annual payment.If this Lease is terminated at any time as the result of
Lessee’s default,no rentals shall be prorated as the date of termination.
The parties agree and acknowledge that this Lease Agreement does not constitute a multiple-
fiscal year debt or financial obligation of the Lessee based upon the Lessee’s ability to terminate
this Lease Agreement pursuant to Paragraph 3 of the Lease.Lessor acknowledges that Lessee
has made no promise to continue to budget and appropriate funds beyond each fiscal year and
that Lessee’s only obligation is to pledge adequate financial reserves for the fiscal year of t994pio
and all subsequent calendar years in which Lessee has exercised its option to renew.Lessor
understands and agrees that in the event that Lessee terminates this Agreement,pursuant to
provisions of Paragraph 3,that the obligation of Lessee for any further payments to Lessor is
terminated.
5.LIABILITY
The Lessee shall provide the Lessors with certificates of liability insurance for general liability
insurance in an amount of no less than One Hundred Fifty Thousand Dollars ($150,000)per
person,and Six Hundred Thousand Dollars ($600,000)per occurrence,and Fifty Thousand Dollars
($50,000)property damage,naming Lessors as additional insured on the policy or policies.
Lessee may satisfy this requirement by obtaining appropriate endorsement to any umbrella policy
or liability insurance the Lessee may maintain.Lessee may provide for property insurance set
forth above partially or wholly by means of a self insurance furilas provided by law.The parties
understand and agree that the Lessee is relying on,and does not waive or intend to waive,by any
provision of this Lease,the monetary limitations (presently $150,000 per person and $600,000 per
occurrence)or any rights,immunities and protections provided by the Colorado Governmental
Immunity Act,Section 24-10-101,et seq.CR5.,as from time to time amended or otherwise
available to Lessee or any of its offices,agent or employees.The Lessors will not be responsible
for any losses of any kind,including but not limited to,fire,theft,hazardous road or weather
conditions,fluctuations of power voltage,wind or lightning.
6.INDEMNITY
To the extent lawfully allowed,Lessee agrees to indemnify,protect and save harmless the
Lessors from any and all claims,demands and liability for any loss,damage or injury,including
death,or other like or different casualty to persons and property used by and growing out of,or
happening in connection with Lessee’s use and occupancy of the aforesaid premises,and any
equipment located or to be located thereon,due to the negligence of Lessee,its agents,servants,
or employees.
Lease Agreement 2009
Heronif own of Estes Park
6 pages 2
7.CONDITIC -SITE
During the Initial Term and any Renewal Term,the Lessee shall be responsible for any and all
damages to the site caused by or directly attributed to any actions by the lessee or its
representatives.Upon termination or expiration of this Lease Agreement,the Lessee will
surrender its use at the site in good condition except for damages due to causes beyond the
Lessee’s control or without its fault or negligence.The Lessee further agrees not to construct any
additional improvements upon the site without the prior written approval of the Lessors.
8.NOTICES
All notices required or permitted hereunder shall be in writing and shall be deemed given if
personally delivered or mailed,certified or registered mail,return receipt requested,or sent by
overnight carrier to the following addresses:
If to Lessor,to:
duhwPt-Herowlccevocahialuist a ‘L Q
Attn:John A.Heron,ffrustee \e--ç V’Eèc.<.
—Gal-fvleeker —ci .x
Estes Park,CO 80517
If to Lessee,to:
Town Administrator
Town of Estes Park
P.O.Box 1200
Estes Park,CO 80517
Or if a more current address,or name,has been given to the other party in writing,to such
other address,or name.
9.WAIVER
Failure or delay on the pad of the Lessors to exercise any right,power or privilege hereunder
shall not operate as a waiver thereof.
10.DEFAULT
If either party is in default of any of its obligations hereunder and such default shall continue for
a period of more than thirty (30)days after written notice thereof,either party may terminate this
Lease Agreement for said default.In the event default is for non-payment of rent by Lessee,then
the Lessor may terminate this Lease Agreement and declare the rent for the entire remaining term
of this Lease Agreement immediately due and payable and proceed to collect the same.The
defaulting party agrees to pay in addition to any other damages by reason of said default all of the
non-defaulting party’s costs in enforcing the Lease Agreement together with all attorney’s fees,
expert witness fees and court costs incurred by the non-defaulting party.
Lease Agreement 2D09
Heron/Town of Estes Park
s pages 3
11.ASSIGNI
The Lessee shall not assign its rights under this Lease Agreement or any interest herein,or
convey the whole or any portion of the leased area,without the prior written consent of the
Lessors.
12.ENTIRE AGREEMENT
The Lease Agreement constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof and supersedes all prior offers,negotiations,and agreement,whether written
or oral,between the parties hereto with respect to the subject matter hereof.
13.TAXES
Lessee shall pay any personal property taxes assessed on,or any portion of such taxes
attributable to,the facilities belonging to the Lessee.Lessors shall pay when due real property
taxes and other fees and assessments attributable to the property in an amount not to exceed the
amount of the 1998 taxes.Lessee shall pay as additional rent any increase in real property taxes
levied against the property or towers in excess of the amount of taxes for the year 2009,payable in
2010,if it is determined that such increase is attributable to Lessee’s use of the defined premises.
14.INTERFERENCE
In the event that the Lessee causes any harmful interference to existing lessees,the Lessee
must terminate or cure its operation within forty-eight (48)hours.The Lessee may then either
remedy or remove its equipment.All responsibility and expenses related to interference shall be
born by the Lessee and not the Lessors.If such interference cannot be eliminated,the Lessee
may terminate this Lease by giving thirty (30)days notice prior to such termination.The Lessors
will use their best efforts to prevent future lessees from causing harmful interference to the Lessee.
All transmitters installed by the Lessees at the site shall be properly licensed and operated in
accordance with the Federal Communications Commission (FCC)rules and regulations,and a
copy of the license shall be posted with the transmitting equipment.All licensing and any
subsequent licenses shall be at the sole expense and responsibility of the Lessee,including any
penalty or enforcement imposed by the FCC.
15.CANCELLATION OF LEASE
This Lease Agreement may be canceled by mutual consent of the Lessee and the Lessors for
non-payment of rent or any violations of the terms of this Lease Agreement.This Lease
Agreement shall be irrevocable during its term and shall continue in force unless or until terminated
by any of the partied hereto only in accordance with and as allowed under the terms of this
Agreement.Thereupon,this Lease Agreement shall absolutely end.
Lease Agreement 2009
Heron/Town of Estes Paric
s pages 4
16.IMPROVE T
Lessee shall have the right,at its expense,to place and maintain at the site improvements,
personal property,and facilities,which include radio transmitting and receiving antennas and
electronic equipment,and in addition,attached structure,all with the approval of the Lessors
during the term of this Lease,with notice to the Lessors.The property placed upon the premises
by the Lessee shall remain the exclusive property at any time of the Lessee,and the Lessee shall
have the right to remove its said property at any time in whole or in part and within any reasonable
time following any termination of this Lease,if the Lessee shall not be in default at that time.
17.UTILITIES
The Lessee will be responsible for the supply and payment of all AC and/or DC power used on
the premises by the Lessee.
18.ACCESS
Lessee agrees to keep the gate across the access road locked at all times.The Lessors are
obliged to provide the Lessee with a key to said gate and will subsequently provide new keys as
necessary when the lock to said gate is changed.It is agreed that the Lessors will not provide
maintenance on the road during the winter months and that,therefore,the site may not be
accessible.Inclement weather restricting access shall not impose a liability on the Lessors.
LLL.C
LESSOR
By:John A.Heron,Taistee
m
Ton Clerk Williamson
LESSEE
TOWN F ESTES PARK
B Ma or
Lease Agreement 2009
Heron/Town of Estes Park
5
1 0
eon
00i900
e
William C.Pinkham
ATtEST
S pages
0 C
EXHIBIT “A”
TOWN OF ESTES PARK
RADIO SYSTEMS ON PROSPECT MOUNTAIN
SYSTEM FCC LICENSE FREQUENCY BUILDING LOCATION
Municipal 9806A020392 159.315 Town
Police
CH I 9607R142287 155.910 U.S.Bureau of Reclamation
CV2 9607R142287 155.475 NaIl Park Service
Police Vehicle
Data System 0001977831 4940-4990mhz U.S.Bureau of Reclamation
Water Department 757759 952.35625 Nat’I Park Service
Light &Power Dept.9807C004644 159.645 U.S.Bureau of Reclamation