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HomeMy WebLinkAboutC23-289 Cingular-leaseMarket: Rocky Mountain Region Venue: Eagle County Govt. Building Agreement Name: Eagle County In-Building License Agreement FA: 16231705 1 | Page IN-BUILDING LICENSE AGREEMENT Licensor Licensee Eagle County 500 Broadway Street Eagle, CO 81631 Country: USA New Cingular Wireless PCS, LLC 1025 Lenox Park Blvd., N.E. 3rd Floor Atlanta, GA 30319 Licensor Contact (for notices) Licensee Contact (for notices) Name: Scott Lingle Title: IT Director Address: 500 Broadway Street Eagle, CO 81631 Telephone: (970) 328-3581 Email:scott.lingle@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 E-Mail: atty@eaglecounty.us New Cingular Wireless PCS, LLC Attn: TAG 1025 Lenox Park Blvd., N.E. 3rd Floor Atlanta, GA 30319 Re: FA # 16231705 Telephone: (877) 231-5447 Email: RELeaseAdmin@att.com With a copy to: New Cingular Wireless PCS, LLC Attn: Network Counsel 208 S. Akard Street Dallas, Texas, 75202-4206 Re: FA # 16231705 This In-Building License Agreement (“Agreement”), between the Licensor named above (“Licensor”) and the Licensee named above (“Licensee”), for its own benefit and for the benefit of its Affiliates which participate in this Agreement, is effective as of the latter of the signature dates below (the “Effective Date”). Licensee and Licensor are, at times, referred to herein individually as a “Party” and together as the “Parties”. Licensor owns or controls that certain plot, parcel or tract of land, improved with a structure (the “Structure”), together with all rights and privileges arising in connection therewith, located at 500 Broadway Street, in the County of Eagle, City of Eagle, State of Colorado 81631 (collectively, the "Property"). Licensee desires to use a portion of the Property as set forth on Exhibit A attached hereto and incorporated herein in connection with its wireless communications business. Licensor desires to grant to Licensee the right (which is revocable and terminable as provided below) to use a portion of the Property as set forth on Exhibit A in accordance with this Agreement. 1. Definitions. 1.1 “Affiliate” of Licensee means any entity that controls, is controlled by, or is under common control with Licensee. 1.2 “FCC” means the Federal Communications Commission. 1.3 “Frequency” or “Frequencies” means the frequencies for which a Licensee affiliate holds or uses to provide wireless telecommunication services and features. 1.4 “Interference” means undesired RF energy that can degrade the quality of service on frequencies, which may result in distorted conversations, dropped calls, and blocked calls for Licensee affiliates or other carriers.            Page | 2 1.5 “LAN” means Local-Area-Network, a system that has networking equipment and/or computers in close proximity to each other capable of communicating, sharing resources and information. 1.6 “Modifications” means any modifications, enhancements, expansions, upgrades or equipment replacement, adjustments, shut-downs, disablements, or other changes to a System or any component thereof. 1.7 “Network” means the Licensee infrastructure that is used to provide wireless radio telecommunications services on the Frequencies. 1.8 “Premises” means the physical location(s) identified in Exhibit A, which is attached hereto and incorporated herein by reference (collectively, “Exhibit A”). 1.9 “RF” means radio frequency. 1.10 “System” means a customized in-building wireless radio telecommunications system comprised of one or more Systems, any related transmission facilities and any related equipment and cabling that will be installed for use on the Premises, to enable enhanced RF coverage from the Network. 1.11 “Transport” means the public telecommunications infrastructure which permits telecommunications between and among defined Network termination points. 1.12 “WAN” means Wide Area Network, a private or public network service generally provided by a phone company connecting LAN's across diverse geographic regions. 2. System and Premises. 2.1 Identification. The Parties acknowledge and agree that Licensee may make Modifications and/or add additional Systems to the existing Premises, or add new Premises in the future, by a mutually agreed upon written amendment to this Agreement. Unless otherwise set forth in Exhibit A, all terms and conditions of this Agreement apply to the Systems and Premises. 2.2 Installation. Licensee will install the System on the Premises materially in accordance with the System designs and in the location as set forth in Exhibit A. Any jurisdictional land use or building and safety permits that may be required for the installation, maintenance, repair, replacement, removal and/or operation of a System will be Licensee’s sole responsibility. Licensee shall seal and waterproof all penetrations Licensee makes to the exterior of the Structure during the installation. 2.3 Maintenance. Subject to the terms and conditions specified herein, Licensee will maintain the System on the Premises at Licensee’s expense. Licensor is obligated to maintain any Licensor-owned cabling and distribution systems to which the System is connected. Licensor reserves the right to perform structural or cosmetic maintenance on the Structure. Licensor shall give Licensee at least one hundred eighty (180) days’ prior written notice of the intended work and the opportunity, at Licensor's cost and expense, to temporarily relocate and continue to operate its antennas, or otherwise to secure the antenna or the System generally, to protect them from damage and allow Licensee’s continued operation. Licensee will be permitted to install, with mutual agreement by both Parties, which agreement shall not be unreasonably withheld, delayed or conditioned, any type of temporary facility necessary to keep its System operational. Any maintenance will be conducted by Licensor as diligently and expeditiously as possible. 2.4 Modification and Capacity. Licensor understands and agrees that the System impacts Network capacity and performance, and that, due to the nature of RF, the System may not provide coverage for the entire Premises. Licensor also understands and agrees that from time to time Licensee may, in its sole discretion, and without prior approval from Licensor make Modifications to the System and Network. Notwithstanding the foregoing, any such Modifications may require additional space and consume additional power at the Premises, both of which shall require mutual agreement by both Parties, which agreement shall not be unreasonably withheld, delayed or conditioned. Any Licensor-proposed Modifications to a System are subject to Licensee’s prior written approval, and, if approved, will be implemented by Licensee at Licensor’s sole expense. 2.5 Ownership. FCC regulations require Licensee to maintain sole control over any transmitting device that operates within Licensee’s assigned Frequencies. The Parties agree that: (a) Licensor does not have, and will not acquire through this Agreement any proprietary or ownership rights or interest in the System, the Network, or related components. The System, and all corresponding components, are and will remain the property of Licensee, and except as set forth herein, Licensee will have the right to install, operate, maintain and remove the System in its sole discretion at Licensee’s expense. Licensee’ shall be responsible, at its sole cost and expense, for any damage to the Premises caused by Licensee’s installation, operation, maintenance and/or removal of the System. Licensee has no proprietary or ownership rights in the Premises or Licensor’s facilities, including Licensor-owned cabling and distribution systems if used as part of a System installation. 2.6 Connectivity. Licensor understands and agrees the System requires connectivity to the Network via compatible IP network or other compatible broadband service (“Transport”). Licensor will fully cooperate with any Transport provider requesting an easement over, under and across the Property in order to provide service to Licensee as Licensee may require to operate the System. Licensee shall be responsible for ordering services which Licensee may require from time to time for the use and operation of a System, and maintaining such services during the Term at Licensee’s sole expense. By specific agreement between Licensor and Licensee, Licensee shall be responsible for the cost of bringing Transport from the main point of termination on the Property to the corresponding Premises. 2.7 Monitoring. Licensee has the right to monitor the operation of the System twenty-four hours per day, seven days per week, in order to determine System performance and to ensure that Licensor and/or a System does not cause Interference to the Network, transmission facilities or other equipment. If Interference is discovered, Licensee will determine the cause of such Interference, and may, at its option, disable or shut down such System until Licensee is able to determine and eliminate the cause of the Interference. 3. Licensor Responsibilities. Licensor represents warrants and agrees that: (a) Licensor will obtain prior to installation all required approvals and consents from any applicable parties, including by not limited to lenders and landlords, which shall allow Licensee to obtain all required governmental approvals and permits to install, maintain, repair, replace, remove and/or operate the System on the Premises; (b) Except as otherwise set forth in Section 2.6, Licensor will provide to Licensee, at Licensee’s request and at no cost to Licensee, any available conduit, holes (including without limitation any roof penetrations), wireways, wiring, plans, power/utilities and other items reasonably required to allow Licensee to install, repair, maintain, replace, remove, make Modifications to, and/or operate the System, provided such facilities are available. Moreover, Licensor agrees to reasonably cooperate with Licensee with the provision of such, including but not limited to transport, within a reasonable time;            Page | 3 (c) Licensor will provide to Licensee, at no cost to Licensee, space in Premises in accordance with Exhibit A that is sufficient, , and in such a condition that will allow Licensee to install, repair, maintain, replace, remove, make Modifications to (subject to Section 2.4 and Section 2.5 above), and/or operate the System; (d) Licensor represents and warrants that to the best of its knowledge the Premises at which Licensee installs and maintains a System is a suitable and safe working environment, free of Hazardous Materials. “Hazardous Materials” means any substance or material capable of posing an unreasonable risk to health, safety or property or whose use, transport, storage, handling, disposal, or release is regulated by any law related to pollution, protection of air, water, or soil or health and safety. If Licensee discovers, uncovers, disturbs or otherwise reveals any existing Hazardous Materials within the Premises, including but not limited to asbestos, then it must imm ediately stop any work in progress and report such findings to Licensor. If Licensor has not commenced and diligently pursued corrective action to remediate such Hazardous Materials within thirty (30) days after Licensee's discovery then Licensee may terminate this Agreement. Licensee is hereby released from any responsibility for managing, monitoring or abating, and will not be deemed to have ownership of Hazardous Materials, including asbestos, pre-existing within the Premises. Licensee has no obligation to perform work at the Premises that is not a suitable and safe working environment in Licensee’s sole discretion; (e) Licensor will make available to Licensee, on a twenty-four (24) hours per day, seven (7) days per week basis access to the System and the Premises as needed to complete any necessary installation, maintenance, repair, replacement, removal, or Modifications of the System. When accessing the Premises, Licensee shall be subject to Licensor's reasonable security procedures and protocol; and (f) Licensor shall provide at Licensor’s sole cost and expense, all electricity, HVAC, and any other utility used or consumed by Licensee. 4. Term. This Agreement begins on the Effective Date and continues for ten (10) consecutive years (the “Initial Term”). After the Initial Term, this Agreement will automatically renew for successive one (1) year periods (each, a “Renewal Term”) unless either Party gives the other Party notice of its intent not to renew at least ninety (90) days prior to the end of the then current term. 5. Fee. In consideration of Licensee’s installation of the System, there shall be no license fee, or other consideration or equivalent due from Licensee to Licensor. 6. Insurance. During the Term, Licensee will carry, at its own cost and expense, the following insurance: (i) “All Risk” property insurance for its property’s replacement cost; (ii) Workers’ Compensation Insurance as required by law; and (iii) commercial general liability insurance (ISO policy form CG 00 01 or its equivalent), with respect to its activities on the Property, such insurance to afford minimum protection of Three Million Dollars ($3,000,000) combined single limit, per occurrence and in the aggregate, providing coverage for bodily injury and property damage. Licensee’s CGL insurance shall contain a provision including Licensor as an additional insured. Notwithstanding the foregoing, Licensee shall have the right to self-insure the risks for which Licensee is required to insure against and under the same terms and conditions as required in the Section. In the event Licensee elects to self-insure its obligation to include Licensor as an additional insured as permitted by the previous sentence, the following provisions shall apply: (1) Licensor shall promptly provide Licensee with written notice of any claim, demand, lawsuit or the like for which it seeks coverage pursuant to this Section and provide Licensee with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, lawsuit or the like; (2) Licensor shall not settle any such claim, demand, lawsuit or the like without the prior written consent of Licensee; (3) Licensor shall fully cooperate with Licensee in the defense of the claim, demand, lawsuit or the like; (4) Licensee’s self-insurance obligation for Licensor shall not extend to claims for punitive damages, exemplary damages, or gross negligence arising out of the acts or omissions of Licensor; and (5) such obligation shall not apply when the claim or liability arises from the negligent or intentional act or omission of Licensor, its employees, agents, or independent contractors. 7. Default. If either Party fails to perform or observe any material term or condition of this Agreement within thirty (30) days after receipt of written notice of such failure from the other Party, then such Party will be in default of the Agreement (“Default”). No such failure, however, will be deemed to exist if a Party has commenced to cure such Default within such period and provided that such efforts are prosecuted to completion with reasonable diligence. In addition, a Party will be in Default of the Agreement if (i) such Party makes a general assignment for the benefit of its creditors, (ii) a receiver is appointed for that Party due to its insolvency, (iii) that Party initiates a voluntary bankruptcy proceeding, (iv) that Party’s creditors initiate a bankruptcy proceeding against that Party and such proceeding is continuing and not dismissed or discharged for sixty (60) days. 8. Termination; Remedies. 8.1 Termination by Either Party. If a Party is in Default of the Agreement under Section 6 hereof, then the other Party may terminate this Agreement and exercise any and all other remedies available at law or in equity. 8.2 Termination by Licensee. Licensee may immediately terminate this Agreement, exercise any and all other remedies available at law or in equity, and shut down any and all applicable Systems upon written notice to Licensor for any reason or no reason at any time prior to commencement of construction of System by Licensee or under the following circumstances: 8.2.1 Regulatory Change. In the event the FCC, the respective State Public Utilities Commission or any other regulatory agency or legislative body promulgates any rule, regulation or order that in effect or application prohibits or adversely affects Licensee’s ability to fulfill its obligations hereunder. 8.2.2 Interference. In the event Licensee is unable to eliminate the cause of any Interference identified pursuant to Section 2.7 herein, regardless of the cause. 8.2.3 Operations. In the event it is not feasible, economically or otherwise, for Licensee to provide Connectivity to the System (as described in Section 2.6 above), or Licensee experiences a significant loss of power or Transport. 8.3 Equipment Removal. Upon termination of this Agreement for any reason, Licensee shall have the obligation to enter the Premises and remove the System upon reasonable notice to Licensor, provided, however that Licensee’s rights under this Section 7.3 extend only to the Premises. 9. Indemnification. Licensee shall indemnify and hold harmless Licensor, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which Licensor may become subject to insofar as any such losses, claims, damages or liabilities directly arise out ofthis Agreement, or are based upon any performance or nonperformance by Licensee or any of its subcontractors hereunder; and Licensee shall reimburse Licensor for reasonable attorney fees and costs, legal and other expenses incurred by Licensor in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by            Page | 4 third parties against Licensor to the extent that Licensor is liable to such third party for such claims without regard to the involvement of the Licensee. This paragraph shall survive expiration or termination hereof. . 10. Warranties. (a) Licensee and Licensor each acknowledge and represent that it is duly organized, validly existing and in good standing and has the right, power and authority to enter into this Agreement and bind itself hereto through the party set forth as signatory for the party below. (b) Licensee makes no express warranty regarding the system or any portion thereof, and Licensee disclaims any implied warranty, including any warranties of merchantability of fitness therefor. 11. Miscellaneous. 11.1 Limitation of Liability. Intentionally Omitted. 11.2 Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed to have been duly made and received when personally served or when mailed by overnight delivery service or certified mail, postage prepaid, return receipt requested, to the Parties’ addresses set forth on the cover page. Each Party may change its address on thirty (30) days’ written notice. 11.3 Governing Law. The laws of the State where the Premises are located will govern all questions with respect to this Agreement. The prevailing Party in any dispute to enforce or interpret this Agreement will be entitled to recover its reasonable costs and attorneys’ fees. 11.4 Assignment. This Agreement may not be assigned by either Party without prior written consent of the other Party, provided that Licensee may assign this Agreement without consent to any entity controlled by or under common control with Licensee. . Subject to the foregoing, this Agreement will be binding upon the assignees of the respective Parties. 11.5 Third Party Beneficiaries. Other than as expressly set forth herein, this Agreement will not be deemed to provide any third parties with any remedy, claim, right of action, or other right. 11.6 Severability. If any portion of this Agreement is found to be unenforceable, the remaining portions will remain in effect and the Parties will begin negotiations for a replacement of the invalid or unenforceable portion. 11.7 Survival. The terms and provisions of this Agreement that by their nature require performance by either Party after the termination or expiration of this Agreement, including, but not limited to, limitations of liability and exclusions of damages, will be and remain enforceable notwithstanding such termination or expiration of this Agreement for any reason whatsoever. 11.8 Legal Relationship. This Agreement does not render either Party the agent or legal representative of the other Party and does not create a partnership or joint venture between Licensee and Licensor. Neither Party will have any authority to agree for or bind the other Party in any manner whatsoever. 11.9 Waiver. No waiver of any of the provisions of this Agreement will be binding unless it is in writing and signed by both Parties. The failure of either Party to insist on the strict enforcement of any provision of this Agreement will not constitute a waiver of any provision. 11.10 Waiver of Jury Trial. Each party, to the extent permitted by law, knowingly, voluntarily and intentionally waives its right to a trial by jury in any action or proceeding under any theory of liability arising out of or in any way connected with this Agreement or the transactions it contemplates. 11.11 Entire Agreement. This Agreement sets forth the entire agreement between the Parties with respect to the subject matter herein and supersedes all prior agreements, proposals, representations, statements, or understandings, whether written or oral. No change, modification or waiver of any of the terms of this Agreement will be binding unless made in writing signed by both Parties. 11.12 Notwithstanding anything to the contrary contained in this Agreement, Licensor shall have no obligations under this Agreement after, nor shall any payments be made to Licensee in respect of any period after December 31 of any year, without an appropriation therefor by Licensor in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). IN WITNESS WHEREOF, the parties have caused this Agreement to be Effective as of the last date written below. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER By: ______________________________ Jeff Shroll, County Manager Date: "LICENSEE" New Cingular Wireless PCS, LLC By: AT&T Mobility Corporation Its: Manager By: Print Name: ____ Its: ________ Date:                  Page | 5 Exhibit A [ATTACH NEW EX. A]            ZONINGNOT FOR CONSTRUCTIONProject Team:Project Description:Project Data:Site Access:INSTALLATION OF (1) NEW AT&T ANTENNAMOUNTED TO AN EXISTING STAIRWELLTOWER, SUPPORTED BY (1) NEW MBO(MULTI-BAND OUTDOOR) & (1) NEW SBO(SINGLE-BAND OUTDOOR) MOUNTEDINSIDE THE STAIRWELL TOWER, TOPROVIDE COVERAGE FOR THESURROUNDING AREA.MUST SCHEDULE SITE VISITS, PRIOR TOACCESSING SITE. HEAD END IS LOCATEDIN STAIRWELL TOWER ON LEVEL 2.Site Photo:Site Contact:JESSE MERYHEWEAGLE COUNTY970.390.3617JESSE.MERYHEW@EAGLECOUNTY.USConstruction Manager:Quin GelfandAT&T Wireless214.208.5407qg112c@att.comRF Manager:Yash NanjundaswamyAT&T Wireless303.374.4645yn211v@att.comA&E Manager:Adam DaileyMountain Wireless720.255.6089adailey@mountainwireless.comEAGLE COUNTY GOVERNMENT OFFICEMBO/SBO NSBProject:Site Name:500 BROADWAY STREETEAGLE, CO 81631Address:Sheet List:T1 TITLE SHEETZ1.0 OVERALL SITE PLANZ2.1 N & E ELEVATIONSZ2.2 S & W ELEVATIONSZ3.1 EQUIPMENT DETAILSEAGLE COUNTY GOVERNMENTOFFICE500 BROADWAY STREETEAGLE, CO 81631MBO/SBO NSBZONING - REVISION A07.07.202316231705MRUTH058067327462FA Location Code:Pace Number:USID:Site Map:County: EAGLEJURISDICTION: TOWN OF EAGLEPARCEL NUMBER: 2109-051-12-001PROPERTY OWNER: EAGLE COUNTYZONING DISTRICT: PUBLIC AREA (PA)ACREAGE: 1.720LEGAL DESCRIPTION: SUBDIVISION: EAGLE BLOCK:28 LOTS 1-24, TOGETHER WITH WEST HALF OF VACATED BROADWAY R.O.W.BETWEEN 5TH ST. AND 6TH STOCCUPANCY TYPE: A-3, BCONSTRUCTION TYPE: A-3NUMBER OF STORIES: 3FULLY SPRINKLERED: YESGOVERNING CODES: 2015 IBC, 2017 NECSITEN           20'40' 80'Scale: 1" = 40'-0"0'NSCALE:2OVERALL SITE PLAN1" = 40'-0"EAGLE COUNTY GOVERNMENTOFFICE500 BROADWAY STREETEAGLE, CO 81631MBO/SBO NSBZONING - REVISION A07.07.2023'A'Z1.0ANEW AT&T ANTENNA MOUNTED TOTOP OF EX. STAIRWELL TOWERPARENT PARCEL:210905112001PUBLIC AREA (PA)ADJ. PARCEL:210905112002PUBLIC AREA (PA)LINE TYPE LEGEND:PARCEL LINESCALE:1PROPERTY MAPNNEW ANTENNA PHOTO SIMULATION(GROUND LEVEL - LOOKING NORTH) Z2.21Z2.22Z2.11Z2.12NEW AT&T ANTENNA(SEE PHOTO 'A')NEW AT&T ANTENNA MOUNTED TOTOP OF EX. STAIRWELL TOWERZONINGNOT FOR CONSTRUCTION           4'8' 16'Scale: 3/32" = 1'-0"0'24'SCALE:1NORTH ELEVATION3/32" = 1'-0"EAGLE COUNTY GOVERNMENTOFFICE500 BROADWAY STREETEAGLE, CO 81631MBO/SBO NSBZONING - REVISION A07.07.2023STAIRWELL TOWER71'-10"SCALE:2EAST ELEVATION3/32" = 1'-0"STAIRWELL TOWER71'-10"GRADE0'-0"COURTYARD12'-0"ANTENNA TIP HEIGHT75'-10"GRADE0'-0"COURTYARD12'-0"ANTENNA TIP HEIGHT75'-10"NEW AT&T ANTENNA MOUNTED TOTOP OF EX. STAIRWELL TOWEREX. STAIRWELL TOWERNEW AT&T ANTENNA MOUNTED TO TOPOF EX. STAIRWELL TOWEREX. STAIRWELL TOWERZONINGNOT FOR CONSTRUCTION           SCALE:1ANTENNA SPECIFICATIONS1-1/2" = 1'-0"EAGLE COUNTY GOVERNMENTOFFICE500 BROADWAY STREETEAGLE, CO 81631MBO/SBO NSBZONING - REVISION A07.07.2023ZONINGNOT FOR CONSTRUCTION