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HomeMy WebLinkAboutC20-035 Visionary Communications 1 LEASE AGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND VISIONARY COMMUNICATIONS INC. This Sublease Agreement (the “Agreement”) is effective as of ____________________ (the “Effective Date”) between Eagle County, Colorado by and through its Board of County Commissioners (hereinafter referred to as “Landlord” or “County”) and Visionary Communications, Inc., a Wyoming Corporation, (hereinafter referred to as “Tenant” or “VCN”). WITNESSETH: WHEREAS, County owns property located at 605 Ute Creek Road, near Wolcott, Colorado, with GPS coordinates of 39.720375, -106.667573, in Section 11, T4S R83W (the “Property”); and WHEREAS, VCN is an Internet service provider and offers high-speed wireless Internet services to the surrounding area and it needs to locate telecommunications equipment on the Property; and WHEREAS, the County desires to lease space located on the Property for use by the Tenant for the purpose of providing its service to its customers, which includes the County; and NOW, THEREFORE, in consideration of the terms and covenants stated herein, including the rental amount, the sufficiency of which is hereby acknowledged, Landlord and Tenant agree as follows: ARTICLE 1 Leased Premises Landlord hereby leases to Tenant, and Tenant hereby rents from the Landlord, the portion of the Property inside the Materials Recovery Facility (“MRF”) described as telecommunications equipment (radio equipment, rack space and antennas) on a tower, which will be located on one of the County’s buildings on the Property, and space within the building located at the base of the tower to house radios and affiliated equipment and install wiring to interconnect the tower and equipment inside the building (hereafter referred to as the “leased premises”); see Exhibit A attached hereto and incorporated herein which depicts the leased premises. The Landlord will only provide space to store such radio communications equipment in the leased premises. The leased premises shall be used only for the telecommunications equipment. Landlord represents and warrants that the execution and delivery of this Agreement and the performance of all covenants and agreements of the Landlord contained in this Agreement are authorized by the Constitution and laws of the State of Colorado and the execution, delivery and performance of this Agreement by the Tenant are authorized and have been duly authorized as required by law. DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 1/21/2020 2 Landlord further represents and warrants that execution and delivery of this Agreement and the consummation of the transactions herein contemplated will not materially conflict with or constitute a material breach of any contract, loan agreement or lease to which the Landlord is a party or by which Landlord is bound. ARTICLE 2 Term The term of this Agreement is for one (1) year commencing on the Effective Date (“Initial Term”) and shall expire twelve (12) months after Effective Date unless terminated earlier as specified herein. This Agreement shall be automatically renewed for ten (10) successive one (1) year terms (“Renewal Term”), unless either party sends a written notice of its intentions to terminate the agreement pursuant to Article 13 of this Agreement. ARTICLE 3 Rent Tenant agrees to discount its VCN-provided services to Landlord one hundred dollars ($100.00) per month for the Initial Term and Renewal Terms of this Agreement. By executing below, Landlord acknowledges receipt of this rental sum. Tenant will waive the installation fee associated with the service. ARTICLE 4 Insurance Tenant agrees, at Tenant’s own expense, to maintain in full force during the Lease term worker’s compensation insurance as required by law, comprehensive commercial general liability and property insurance which will cover Tenant and Landlord against liability for injury to persons and/or property, and death of any person or persons occurring in or about the leased premises. Each policy shall be approved as to form by Landlord. The liability under such commercial general liability and property insurance shall not be less than $1,000,000 per occurrence; $1,000,000 for bodily injury and property damage liability; $1,000,000 for personal injury; and $1,000,000 in annual aggregate limits. The policy shall list as additional insureds the County and any other person or entity Landlord shall designate. All policies must contain an endorsement affording an unqualified thirty (30) days’ notice of cancellation to Landlord in the event of cancellation of coverage. Certificates of insurance with the required endorsements evidencing coverage must be delivered to Landlord upon execution of this Agreement. Tenant shall provide Landlord a complete copy of any policy of insurance required hereunder within five (5) business days of a written request from Landlord, and hereby authorizes Tenant’s brokers, without further notice to or authorization by Tenant, to immediately comply with any written request by Landlord for a complete copy of any policy required hereunder. DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 3 ARTICLE 5 Indemnification Tenant acknowledges that it uses the leased premises at its own sole risk. Tenant hereby releases Landlord, Landlord’s agents, contractors and employees from liability for any and all costs, demands, losses, damages of any nature whatsoever, and judgments, including attorney’s fees, which Tenant may suffer as a result of its use of or operation in the leased premises, except for the willful misconduct of Landlord. Additionally, Tenant will indemnify Landlord, Landlord’s agents, contractors and employees and save Landlord, Landlord’s agents, contractors and employees harmless from and against any and all liability for any costs, losses or damages of any nature whatsoever suffered or alleged to be suffered by any third party (including Tenant’s members, clients, client’s families, directors, officers, employees and agents) as a result of Tenant’s use of or operation in the leased premises. In case Landlord, Landlord’s agents, contractors and employees shall be made a party to any litigation commenced by or against Tenant, then Tenant shall fully protect and hold Landlord, Landlord’s agents, contractors and employees harmless and pay all costs, expenses, and reasonable attorney’s fees, incurred or paid by Landlord in connection with such litigation, to the extent allowed by law. Additionally, the parties mutually agree that no Commissioner or officer or employee of the Landlord nor any officer, manager, member, agent or employee of the Tenant shall be held personally liable under this Agreement or because of its enforcement or attempted enforcement. The parties agree that nothing contained herein waives or is intended to waive any protections that may be applicable to the County under the Governmental Immunity Act, C.R.S. § 24-10-101 et. seq., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and applicable laws. This paragraph shall survive expiration or termination hereof. ARTICLE 6 Utilities and Operational Expenses 1. Landlord shall pay for electricity for the Tenant’s telecommunications equipment and tower on the leased premises. Tenant shall not install any other utilities to the leased premises. 2. With regard to all utilities, it is mutually agreed that Landlord shall not be liable in damages or otherwise for any interruption or failure thereof. 3. Tenant agrees that it will not install any equipment which will exceed or overload the capacity of any utilities facility or in any way increase the amount of utilities usually furnished or supplied for use of the leased premises. DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 4 4. Notwithstanding anything to the contrary, Tenant agrees to promptly pay all taxes, license and permit fees of whatever nature applicable to its operations hereunder and to take out and keep current all licenses required for the conduct of its business at and upon the leased premises. Tenant further agrees not to permit any of said taxes, license or permit fees to become delinquent. Tenant further agrees to promptly pay when due all bills, debts and obligations incurred by it in connection with its operations hereunder and not to permit the same to become delinquent and to suffer no lien, mortgage, judgment or execution to be filed against the leased premises. ARTICLE 7 Operation and Use of the Leased Premises 1. In the event the existing space for the telecommunications equipment proves insufficient, with permission of Landlord which shall not be unreasonably withheld, Tenant may install additional telecommunications equipment in an area acceptable to Landlord upon amendment of this Agreement. 2. Tenant’s use of the leased premises is limited to storage of its telecommunications equipment including the tower within and on the County building within the Property. 3. Tenant agrees that it will keep the equipment area in a neat, clean, safe, sanitary and orderly condition at all times. 4. Tenant agrees not to use or permit use of the leased premises for any purpose prohibited by the laws of the United States, State of Colorado, Eagle County and any rules or regulations adopted by Eagle County, all as amended from time to time, and not otherwise authorized hereunder. Tenant further agrees that it will use the leased premises in accordance with all applicable federal, state and local laws, ordinances, resolutions, and all rules and regulations adopted by County for the operation, management and control of the Property. 5. All work performed in the leased premises by Tenant shall conform to generally accepted principles and best practices. Tenant further acknowledges that its telecommunications equipment is a junior use to all existing uses at the leased premises, including that of Eagle County and any other co-located users of the leased premises (collectively referred to as the “Senior Users”) as of the date of this Agreement. Any interference caused by Tenant’s equipment shall immediately be corrected by Tenant, at its own expense, to the satisfaction of Landlord and any affected Senior Users. Tenant may be required to cease operation of the offending equipment immediately until and unless such interference is corrected. 6. Tenant agrees not to improve, change, alter, add to, remove or demolish any of Landlord’s improvements in the leased premises without prior written consent of DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 5 Landlord. Tenant must comply with all conditions which may be imposed by Landlord in its sole discretion. 7. Tenant will not use, occupy, or permit the leased premises or any part thereof to be used or occupied for any unlawful or illegal business, use or purposes deemed by Landlord to be disreputable, hazardous, or a nuisance of any kind, nor for any purpose or in any way in violation of any present or future laws, rules, requirements, orders, directions, ordinance, or regulations of the United States of America, State of Colorado, County of Eagle or other municipal, governmental, or lawful authority whatsoever having jurisdiction. 8. Tenant shall not do or permit anything to be done in or about the leased premises or bring or keep anything therein which will in any way increase the rate of fire insurance upon the Property wherein the leased premises are situated. Tenant shall, at Tenant’s sole cost and expense, comply with any and all requirements pertaining to the leased premises of any insurance company necessary for the maintenance of reasonable fire and public liability insurance covering the leased premises. 9. No hazardous substances or materials are allowed on the Property. Hazardous substances or materials are those which are identified by the State of Colorado or Federal law or regulation as any substance with hazardous material classification greater than one (1) for health, fire, or reactivity and/or specific hazard designation. 10. No storage of any items, including but not limited to, garbage, chairs, tables, etc. will be permitted outside of the leased premises. 11. The Tenant shall provide copies of all license(s) issued by the Federal Communications Commission (“FCC”) authorizing operation of its radio equipment to the Landlord. The Tenant shall comply with all rules associated with the FCC license(s). ARTICLE 8 Repairs, Alterations and Improvements 1. Tenant shall keep the leased premises in good order, condition and repair. 2. Wiring shall be done in a professional manner, completed in a neat appearance, and serviceable appearance (when in visible locations and in all network closets). Cables must be properly dressed and be Plenum rated cable when required by the National Electrical Code Section 300-22. 3. All reasonable alterations, improvements, and/or additions to the leased premises by Tenant will only be done at Tenant’s expense after obtaining Landlord’s written consent. DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 6 ARTICLE 9 Assignment and Subletting Tenant shall not assign this Agreement or any interest herein, or permit the use of the leased premises by any person or persons other than Tenant, or sublet the leased premises in whole or in part, without Landlord’s prior written approval, which shall not be unreasonably withheld. ARTICLE 10 Access to the Leased Premises 1. Landlord shall provide Tenant with access to the Property in order to get to the leased premises at all times. Tenant will have 24/7 matrix badge access for 2 named employees of Tenant. Tenant shall provide the employee names, employee phone numbers and employee e-mail addresses to Landlord. In the event, that named employee changes, Tenant shall update Landlord with the revised information within four (4) hours of such change. 2. Tenant shall notify Landlord by telephone or email 24 hours prior to access to the leased premises in nonemergent circumstances. Tenant will provide telephone notice when enroute to the Property. Under emergent circumstances, such notification shall be as soon as conveniently possible. Telephone or e-mail notice under this Article 10 shall be provided to Landlord’s contact as described in Article 17 or as updated from time to time. ARTICLE 11 Default Delinquency by Tenant in the performance of or compliance with any of the obligations of Tenant contained in this Agreement, for a period of ten (10) business days after written notice thereof from Landlord, shall constitute a default of this Agreement by Tenant. ARTICLE 12 Remedies If Tenant defaults in any of the covenants, terms and conditions herein, the Landlord may exercise any one or more of the following remedies: 1. Landlord may terminate this Agreement and repossess the leased premises, with or without process of law, and without liability for so doing, upon giving ten (10) business days written notice to Tenant of its intention to terminate. At the end of which time all rights hereunder of the Tenant shall terminate, unless the default has been cured within ten (10) business days after receipt of written notice from Landlord. DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 7 2. The remedies provided in this Agreement shall be cumulative and shall in no way affect any other remedy Landlord may have by operation of law or equity. ARTICLE 13 Termination 1. This Agreement may be terminated upon the occurrence of any of the following: a. Default of the Tenant in performance of its obligations hereunder pursuant to Articles 11 and 12 hereof; b. Written notification by Landlord to Tenant that this Agreement will terminate for any reason whatsoever, with or without cause, specifying the date of termination. Said termination date shall be no sooner than ninety (90) days from the date of notification. 2. Upon the termination or expiration of this Agreement, Tenant shall peacefully surrender the leased premises to Landlord, and Landlord at any time after any such termination or expiration, may, without further notice, peaceably reenter the leased premises and take control of the same. 3. No such termination of this Agreement shall relieve Tenant’s liability and obligation under this Agreement, except that Tenant’s obligation to pay rent shall be prorated to the period of Tenant’s actual possession of the leased premises. Landlord shall reimburse Tenant for all rent payments received by Landlord in excess of Tenant’s prorated rent obligation. ARTICLE 14 Damage, Destruction or Loss 1. If the leased premises, or any portion thereof, is destroyed or damaged by fire or otherwise to an extent that renders it unusable, Tenant may then, at its option terminate this Agreement. 2. If Tenant’s equipment or the tower is destroyed or damaged without fault or negligence by Tenant and it cannot be repaired at a reasonable cost in a reasonable time, Tenant at its discretion may elect to terminate this Agreement as of the date of the damage or destruction by written notice given to Landlord not more than fourteen (14) days following the date of determination of cost of the damage or destruction. 3. In the event Landlord elects to rebuild, and Tenant does not exercise its option pursuant to section 1 of this Article, Tenant must replace all of its moveable, equipment and personal property at its sole cost. DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 8 4. Landlord shall not be liable for any loss of property or theft or burglary from the leased premises or for any damage to person or property on the leased premises resulting from lightning, water, rain or snow, which may come into or issue or flow from any part of the Facility, unless such is directly attributable to Landlord’s acts and only to the extent Landlord can be found liable under Colorado law, to the extent permitted by law. ARTICLE 15 No Waiver The failure of Landlord to insist in any one or more instances upon a strict compliance with any of the obligations, covenants and agreements contained in this Agreement, or the failure of the Landlord on any one or more instances to exercise the option, privilege or right herein contained shall in no way be construed to constitute a waiver or relinquishment or release of such obligation, covenant or agreement and no forbearance by the Landlord or any default hereunder shall in any manner be construed as constituting a waiver of such default by the Landlord. ARTICLE 16 Surrender of Leased Premises and Hold Over 1. Upon the expiration or earlier termination of this Agreement, or on the date specified in any demand for possession by Landlord after any default by Tenant, Tenant covenants and agrees to surrender possession of the leased premises to Landlord in the same condition as when first occupied, ordinary wear and tear excepted. 2. If Tenant should remain in possession of the leased premises after the expiration of this Agreement for whatever reason and without executing any written renewal thereof, then such holding over shall not be deemed as a renewal or extension of this Agreement, but shall be construed as a tenancy from month to month that may be terminated at any time by Landlord or Tenant upon thirty (30) days written notice to the other. Such month to month tenancy shall be subject to all the conditions, provisions, and obligations of this Agreement insofar as the same are applicable to a month to month tenancy. Notwithstanding the foregoing, any holding over shall be an unlawful detainer and Landlord may institute such proceedings against Tenant and shall receive any past due rent and the remaining rent for the year as liquidated damages. ARTICLE 17 Notices 1. Except as otherwise provided in this Agreement, all notices to be given with respect to this Agreement shall be in writing. Each notice shall be sent by registered or certified mail, postage prepaid and return receipt requested, to the DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 9 party to be notified at the following address or at such other address as either party may from time to time designate in writing. Landlord: Eagle County Attn: Jake Klearman, IT Department P.O. Box 850 500 Broadway Eagle, CO 81631 Phone (970)328-3595 Jake.klearman@eaglecounty.us With a copy to: Eagle County Attorney Post Office Box 850 500 Broadway Eagle, CO 81631 Tenant: Visionary Communications Inc. 1001 S. Douglas Hwy, Suite 201 PO Box 2799 - 82717 Gillette, WY 82716 Greg Worthen 307.680.4503 cell 307.685.5510 office 307.682.2519 fax gworthen@office.vcn.com Every notice shall be deemed to have been given three (3) days after it shall be deposited in the United States mail in the manner prescribed herein. Nothing contain herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service as a summons or other legal process. ARTICLE 18 Attorney’s Fees & Waiver of Right to Jury In the event of any litigation or other action or proceeding between the parties hereto arising out of the performance or nonperformance of this Agreement, or enforcement of any rights or remedies hereunder, including any indemnities herein contained, the prevailing party shall be entitled in such litigation, action or proceeding to also recover as part of any judgment, award or other relief, its reasonable attorney’s fees and costs incurred. Landlord and Tenant expressly waive any right which either may have to trial by jury of any dispute arising under the Agreement relating to the issues of termination of this Agreement and rights to possession of the leased premises. DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 10 Article 19 Entire Agreement and Amendments 1. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior oral or written statements, understandings or correspondences, if any, with respect thereto. This Agreement may be amended only by written agreement of the parties executed in the same manner as this Agreement. ARTICLE 20 Miscellaneous Provisions 1. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. 2. This Agreement and all agreements herein contained shall bind the parties hereto and their heirs, personal representatives, successors and assigns. 3. This Agreement shall be construed in accordance with the laws of the state of Colorado. The Parties stipulate and consent to the exclusive jurisdiction and venue of the District Court, Eagle County, Colorado, in any civil action which might arise under this Agreement. 4. The signatories below hereby represent and warrant that they have full authority to enter into this Agreement on behalf of their respective entities. 5. The Tenant for itself, its personal representatives, successors in interest, and assigns, as part of the consideration hereof, does hereby covenant and agree that no person on the sole ground of race, color, religion, national origin, gender, age, military status, marital status, or physical or mental disability shall be excluded from participation, denied the benefits of, or otherwise be subjected to discrimination in the use of the leased premises. 6. No agent, employee or volunteer of the Tenant shall be deemed an agent, employee or volunteer of the Landlord. Likewise, no agent, employee or volunteer of Landlord shall be deemed an agent, employee or volunteer of the Tenant. 7. Time is of the essence for the performance of any obligation contained in this Lease. 8. Tenant acknowledges that the leased premises are not secure from entry by users of other space in the same building. [REST OF PAGE INTENTIONALLY LEFT BLANK] DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 11 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. LANDLORD: COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS By: ______________________________ Kathy Chandler-Henry, Chair Attest: By: _____________________________ Regina O’Brien, Clerk to the Board DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 13 EXHIBIT A LEASED PREMISES VNC network equipment will be limited to the rack are in the network closet in room 106 in the MFR. DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 14 Equipment on the roof will consist of one non-penetrating roof mount and up to 5 wireless antennas. DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0 15 Equipment inside the on premises network closet will consist of up to 4U of rack space and include a battery backup, surge protector, and networking gear. An example of the gear required includes MicroTic Routers, Netonix switch, UPS and surge protector (racked is possible) appropriate for the space. DocuSign Envelope ID: 15D51302-C0EE-43D1-9793-A9D8B80345B0