CITY OF WESTMINSTER
ORDINANCE NO. 3645
SERIES OF 2012
COUNCILLOR'S BILL NO. 35
INTRODUCED BY COUNCILLORS
BRIGGS - KAISER
A BILL FOR AN ORDINANCE APPROVING AN EXTENSION TO A SITE AGREEMENT BETWEEN THE CITY OF WESTMINSTER AND NEW CINGULAR WIRELESS PCS, LLC, FOR USE OF THE FIRE STATION #6 CELL TOWER AT 999 WEST 124TH AVENUE
THE CITY OF WESTMINSTER ORDAINS:
WHEREAS, City Council previously authorized a site agreement between the City and New Cingular Wireless PCS, LLC, for the purpose of construction and operation of a monopole tower, wireless communications antennas and an equipment structure at 999 West 124th Avenue (a/k/a COU 1253 Cozy Corner ATT); and
WHEREAS, by separate agreement the City and New Cingular Wireless PCS, LLC, agreed to extend the site lease agreement from May 1, 2011, through October 31, 2012; and
WHEREAS, the City and New Cingular Wireless PCS, LLC, have agreed to extend the existing site lease agreement for an addition six (6) month period, expiring April 30, 2013; and
WHEREAS, a short-term extension of the existing site agreement is in the best interest of the City; and
WHEREAS, the final form of the site lease agreement extension has been agreed to by the parties.
THE CITY OF WESTMINSTER ORDAINS:
Section 1: Pursuant to City Charter Section 13.4 and Section 11-4-11(J), W.M.C., a 6-month extension to the Site Agreement between the City and New Cingular Wireless PCS, LLC, for the lease of a portion of the Fire Station #6 cell tower at 999 West 124th Avenue for operation of a monopole tower and wireless communications antennas attached hereto as Exhibit A is hereby approved.
INTRODUCED, PASSED ON FIRST READING, AND TITLE AND PURPOSE ORDERED PUBLISHED this 10th day of September, 2012. PASSED, ENACTED ON SECOND READING, AND FULL TEXT ORDERED PUBLISHED this 24th day of September, 2012.
FIRST AMENDMENT TO SITE AGREEMENT
THIS FIRST AMENDMENT TO SITE AGREEMENT ("First Amendment") entered into as of this _ day of , 2012, by and between the City of Westminster ("City") and New Cingular Wireless PCS, LLC, a Delaware limited liability company, with its principal office located at 12555 Cingular Way, Suite 1300, Alpharetta, GA 30004 ("Company").
A. City is the owner of land and facilities located at 999 West 124th A venue in the City of Westminster, Adams County, State of Colorado (the "Property"). A 50 by 40 foot parcel (the "Site") within the Property has been previously leased to the Company for construction and operation of a monopole tower, wireless communications antennas and an equipment structure (the "Facilities"). The Company has one subtenant at the Site, which has located an antenna on the Company's monopole and maintains equipment within the Company's equipment structure.
B. Company is a wireless communications provider, and permitted or licensed by the applicable federal or state governmental authority to operate in all or some areas of the City of Westminster.
C. Company and the City entered into a Site Lease Agreement dated December 17, 1990 (the "Site Lease Agreement"). Prior to the expiration of the Site Lease Agreement which granted the Company use of the Site for its Facilities, the City advised the Company that it was not willing to enter into a long term agreement to maintain the Facilities on the Property after the expiration of the Site Lease Agreement.
D. Company and the City entered into a short term Site Agreement dated May 1, 2011 (the "Site Agreement") while the Company sought longer term alternatives for its operations, and the City permitted the continued use by the Company of the Site pursuant to the terms of Site Agreement. The Site Agreement expires on October 31,2012.
E. The Company continues to finalize alternatives for its operations and requires a six (6) month extension of the Site Agreement. The City agrees to extend the Site Agreement an additional six (6) months and agrees to permit the continued use by the Company of the Site pursuant to the terms of the Site Agreement and this First Amendment.
F. City and the Company believe that the interests of the public will be served by permitting the use of the Site and Facilities in accordance with the terms and conditions of the Site Agreement and this First Amendment.
In consideration of the mutual covenants, obligations, terms and conditions recited below, the parties agree as follows:
1. City agrees to extend the Site Agreement an additional six (6) months and will permit the continued use by the Company of the Site pursuant to the terms of the Site Agreement and this First Amendment.
2. Amendments to Site Agreement.
a. Section 2 of the Site Agreement shall be amended to read as follows:
"2. Term and Renewal. The term of this Agreement shall commence on May 1, 2011 (the "Commencement Date") and end on April 30, 2013."
b. Section 17 of the Site Agreement shall be amended as follows:
"17. Effect of Termination. Notice of Company's termination pursuant to Section 16 shall be given to City in writing by certified mail, return receipt requested, and shall be effective upon receipt of such notice. Upon termination pursuant to Section 16, this Agreement shall become null and void and the parties shall have no further obligations to each other except in connection with the warranties and indemnities that by their nature shall survive such termination."
c. Section 19 of the Site Agreement shall be amended to add the following subparagraph (d):
"19(d) In consideration for the City extending the term of the Site Agreement until April 30, 2013, the City requires a surety in the form of a performance bond [or a letter of credit] in an amount sufficient to cover the removal of the Company Facilities from the Site pursuant to subparagraphs (a) and (b) above. The Company has provided the City with a bid for the removal of the Company Facilities in the amount of approximately $85,000.00. The Company shall deliver the performance bond [or letter of credit] to the City Engineer in an amount no less than $85,000.00, which shall cover the costs, if necessary to remove the Company Facilities which consist of a monopole tower, wireless communications antennas and an equipment structure, and restore the premises."
3. Application of the Existing Site Agreement. The parties acknowledge and agree that all of the terms and conditions of the existing Site Agreement shall continue to apply until the expiration of this First Amendment.
4. No Other Modifications. Except as expressly modified by the terms and conditions contained in this First Amendment, the terms and conditions of the Site Agreement are hereby reaffirmed by the parties hereto without any additional modification.
IN WITNESS WHEREOF, each of the parties has caused this First Amendment to be duly executed on its behalf as of the day and year first above written.
Published in the Westsider
October 5, 2012