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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/20/2015 - SECOND READING OF ORDINANCE NO. 127, 2015 AUTHORIZAgenda Item 6 Item # 6 Page 1 AGENDA ITEM SUMMARY October 20, 2015 City Council STAFF Helen Matson, Real Estate Services Manager Mike Calhoon, Parks Supervisor SUBJECT Second Reading of Ordinance No. 127, 2015 Authorizing a Lease of City-Owned Property at City Park North Ball Field to Verizon Wireless (VAW) LLC for the Installation of Antennas and Related Facilities, and Associated Access and Utility Easements. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on October 6, 2015, adds an antenna array to an existing City-owned light pole, located at City Park north ball field, 137 South Bryan Avenue, and authorizes the lease of 375 square feet of ground space to Verizon Wireless. The array will be located approximately 65 feet above the ground and accompany two other arrays currently on the pole. Additional ground space for related communication equipment cabinets will be installed adjacent to the current carriers’ equipment. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, October 6, 2015 (w/o attachments) (PDF) 2. Ordinance No. 127, 2015 (PDF) Agenda Item 13 Item # 13 Page 1 AGENDA ITEM SUMMARY October 6, 2015 City Council STAFF Helen Matson, Real Estate Services Manager Mike Calhoon, Parks Supervisor SUBJECT First Reading of Ordinance No. 127, 2015 Authorizing a Lease of City-Owned Property at City Park North Ball Field to Verizon Wireless (VAW) LLC for the Installation of Antennas and Related Facilities, and Associated Access and Utility Easements. EXECUTIVE SUMMARY The purpose of this item is to add an antenna array to an existing City-owned 90.6 foot light pole and lease 375 square feet of ground space to Verizon Wireless. This array would be located approximately 65 feet above the ground and accompany two other arrays currently on the pole. Additional ground space for related communication equipment cabinets would be installed adjacent to the current carriers’ equipment. This will be located at 137 South Bryan Avenue, which is the City Park north ball field. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION The City's Administrative Policy was amended this year and now prohibits granting leases to locate wireless telecommunication facility on any City-owned public land. The Policy states that the wireless telecommunication facilities existing on public land in City Park at the time of the Policy may remain in place, and co-location of equipment by multiple carriers may be encouraged; however, consent to enlarge the footprint of such facilities shall not be granted. Exceptions to this strict application of this policy may be made at the discretion of the City Manager. The City Manager has approved the request for a lease application, even though Verizon is expanding its footprint to install a new equipment cabinet on a new concrete pad. In compliance with this Administrative Policy, Verizon Wireless contacted the Parks Department to discuss a proposed lease of space on an existing City-owned monopole to place its antennas and to construct a ground equipment facility next to the existing equipment facilities of other wireless providers that are leasing from the City. The property to be leased, along with a related utility and access easement, is located at the north ball field in City Park. Attachment 3 is a photo of the area in its current condition and a simulated photo to show the new antenna array and ground equipment. City Council has previously approved similar leases to Sprint, T-Mobile, ATT and Cricket at this location. The key terms of the Lease Agreement include: 1. The term of the lease is for five (5) years and will automatically renew for up to four (4) successive five (5) year periods. 2. Annual rent of $21,600 with increases of 20 percent (20%) every five years. 3. Lease of 375 square foot ground space to house its communication equipment cabinet. ATTACHMENT 1 Agenda Item 13 Item # 13 Page 2 4. Verizon will attach its panel antennas directly below the existing stadium lights, approximately 65 feet above the ground. 5. Verizon will construct three (3) equipment cabinets, approximately 8 square feet each, on a new concrete pad. 6. Verizon will construct a 6-foot galvanized chain link fence to enclose the equipment cabinet. The fence will have a sloped top that will prevent softballs from entering the enclosure. This enclosure will be built and screened to match the existing fenced enclosures leased by other wireless carriers. Verizon will also fund four (4) evergreen trees to provide screening for the equipment. 7. Verizon will construct, maintain, repair, secure and operate its leased area. 8. The agreement includes the granting of a non-exclusive access and utility easement for use by Verizon during the term of this lease. CITY FINANCIAL IMPACTS The lease will generate revenue for the Parks Department of $21, 600 annually over the initial five-year term. The lease rate will increase 20 percent (20%) each additional five-year term. The revenue will be used by the Parks Department for repair and renovation of existing park facilities and equipment. The tenant will be responsible for the maintenance and costs to maintain the leased area. PUBLIC OUTREACH A neighborhood meeting was held March 5, 2015. Notification was sent to property owners bounded by LaPorte Avenue to West Mulberry Street and Grandview Avenue to Lyons Street and South McKinley Avenue. Only one member of the public attended this meeting. Minutes of the meeting are attached (Attachment 4). ATTACHMENTS 1. Sustainability Assessment Summary and Tool (PDF) 2. Location map (PDF) 3. Photo of Existing Condition and Simulated Photo of New Equipment (PDF) 4. City Park Ball Field Wireless Colocate Neighborhood Meeting, March 5, 2015 (PDF) - 1 - ORDINANCE NO. 127, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING A LEASE OF CITY-OWNED PROPERTY AT CITY PARK NORTH BALL FIELD TO VERIZON WIRELESS (VAW) LLC FOR THE INSTALLATION OF ANTENNAS AND RELATED FACILITIES, AND ASSOCIATED ACCESS AND UTILITY EASEMENTS WHEREAS, the City is the owner of those certain parcels of real property described on Exhibit “A” attached and incorporated by reference (the “Property”); and WHEREAS, the Property is part of the City Park North Ball Field and the site of the Fort Collins Housing Authority office building; and WHEREAS, Verizon Wireless (VAW) LLC (“Verizon”) has asked the City to lease it 375 square feet of space on the Property and space on an existing monopole at the ball field (the “Lease Parcel”) for the installation of an antenna and related equipment to enhance its wireless service, along with three utility easements and one access and utility easement to serve Verizon’s facilities (the “Easements”); and WHEREAS, the proposed Lease Parcel and Easements are described on Exhibit “B” attached and incorporated by reference; and WHEREAS, City staff has worked with Verizon to negotiate and prepare a lease agreement (the “Lease”), a copy of which is attached as Exhibit “C” and incorporated by reference; and WHEREAS, under the Lease, Verizon’s initial lease term would be five years, with four additional, successive five-year renewal periods; and WHEREAS, use of the Easements would be governed by the terms of the Lease, and would terminate when the lease of the Lease Parcel terminates; and WHEREAS, the Lease further provides that Verizon shall make annual lease payments to the City at a rate of $21,600 per year for the initial lease term, with the rate increasing by twenty percent at the beginning of each renewal term; and WHEREAS, the Agreement requires Verizon to proceed in accordance with any applicable regulations and other procedural requirements or restrictions, which would include the City Land Use Code and building permit requirements; and WHEREAS, Verizon would also be required to enclose its ground equipment with a chain link fence, and fund the purchase of four additional evergreen trees for installation by the City to help screen the facilities; and WHEREAS, City staff has determined that the proposed installation and use by Verizon of its equipment on the Lease Parcel and use of the Easements on and under the Property are - 2 - consistent with and will not conflict or interfere with the City’s and the public’s use of the Property; and WHEREAS, City staff has further determined that the financial benefits to the City of permitting the proposed use are substantial, and the impacts to the City are minimal; and WHEREAS, Section 23-113(b)(1) of the City Code authorizes the City Council to lease any and all interests in real property owned by the City, if the City Council first finds that such lease is in the best interests of the City; and WHEREAS, if the proposed term of the lease exceeds twenty years, the lease must be approved by ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby determines that the lease of the Lease Parcel to Verizon Wireless (VAW) LLC, and the grant of Easements in accordance with terms and conditions of the Lease are in the best interests of the City. Section 2. That the Mayor is hereby authorized to enter into the Lease with Verizon Wireless (VAW) LLC for the lease of the Lease Parcel and grant of the Easements, in substantially the form attached as Exhibit “C”, together with such additional terms and conditions as the City Manager, in consultation with the City Attorney, determines to be necessary or appropriate to protect the interests of the City or effectuate the purposes of this Ordinance, including but not limited to any necessary changes to the legal description of the Lease Parcel or of the Easements, as long as such changes do not materially increase the size or change the character of the Lease Parcel or the Easements. Introduced, considered favorably on first reading, and ordered published this 6th day of October, A.D. 2015, and to be presented for final passage on the 20th day of October, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk - 3 - Passed and adopted on final reading on the 20th day of October, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk EXHIBIT A PROPERTY DESCRIPTION A tract of land located in the E ½ of the SW ¼ of Section 10, Township 7 North, Range 69 West of the 6 th P.M., City of Fort Collins, County of Larimer, State of Colorado (City Park Golf Course/Ball Park), Larimer County Assessor’s Parcel No. 9710300922, and Lot 1, Fort Collins Housing Authority Subdivision, Fort Collins, County of Larimer, State of Colorado, Larimer County Assessor’s Parcel No. 9710316901 EXHIBIT B FTC Mulberry Site Name: FTC Mulberry 096002.377/Lease Agreement B-1 EXHIBIT B FTC Mulberry Site Name: FTC Mulberry 096002.377/Lease Agreement B-2 X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 48201 5/14/15 Site Name: FTC Mulberry 096002.377/Lease Agreement B-3 FTC Mulberry X X X X X X X X X X X X X X X X X X X X X X X EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP X X X X X X X X X X X X X X X X X X X X X X X X 48201 5/14/15 FTC Mulberry Site Name: FTC Mulberry 096002.377/Lease Agreement B-4 48201 5/14/15 Site Name: FTC Mulberry 096002.377/Lease Agreement B-5 FTC Mulberry X X X X X X X EP EP EP EP EP EP X X X X X X X FO FO FO FO FO FO FO FO E E E E E 37654 Site Name: FTC Mulberry 096002.377/Lease Agreement B-6 FTC Mulberry September 28, 2015 FTC Mulberry BUS_RE/5691079.2 LEASE AGREEMENT THIS LEASE AGREEMENT (“Agreement”) dated and effective as of the date last signed below (“Effective Date”), is between Verizon Wireless (VAW) LLC d/b/a Verizon Wireless (“Tenant”), and THE CITY OF FORT COLLINS, a Colorado municipal corporation (“Landlord”). For good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Premises. Landlord owns a parcel of land (“Property”) located in the City of Fort Collins, County of Larimer, State of Colorado, being a portion of City Park. The Property is more particularly described in Exhibit A, attached and incorporated herein by reference. Landlord wishes to lease to Tenant, and Tenant wishes to lease from Landlord, approximately 375 square feet of space on the Property as well as space on Landlord’s existing monopole (“Monopole”) for Tenant’s antennas and related appurtenances, together with the access and utility easements (the “Easements”) necessary or desirable therefore (collectively, “Premises”) as described and shown on Exhibit B, attached and incorporated herein by reference. 2. Term. The lease term will be five (5) years commencing on ____________________, 2015 (“Commencement Date”) and will terminate on _________________________, 2020 unless otherwise terminated as provided herein. Tenant has the right to extend the Term for four (4) successive five (5) year periods (“Renewal Terms”) on the same terms and conditions as set forth herein, except that the Rent for each Renewal Term will increase as described in Paragraph 4 below. This Agreement will renew automatically for each successive Renewal Term unless Tenant notifies the Landlord of its intention not to renew at least one hundred eighty (180) days prior to commencement of the succeeding Renewal Term. Notwithstanding the foregoing, Landlord may notify Tenant of Landlord’s intention to prevent further renewal of this Agreement for the third (3rd) or any subsequent Renewal Term by giving Tenant notice at least one hundred eighty (180) days prior to the end of the second (2nd) or subsequent Renewal Term. 3. Use, Interference. 3.1 Subject to the terms and conditions of this Agreement, Tenant may use the Premises for the construction, installation, maintenance and operation of the “Communication Facilities” as particularly described and depicted on Exhibit B, attached and incorporated herein by reference, including without limitation, the transmission and the reception of wireless communication signals. Tenant’s use of the Property must comply with all applicable laws and regulations including all Federal Communications Commission (“FCC”) requirements. 3.2 Tenant must operate the Communication Facilities in compliance with all FCC requirements including those prohibiting interference with communications facilities of Landlord or other lessees or licensees of the Property, provided that the installation and operation of any such facilities predate the installation of the Communication Facilities. After the installation of the Communication Facilities, Landlord will not, and will not permit its lessees or licensees to, install new equipment on or make any alterations to the Property if Tenant can establish to Landlord’s reasonable satisfaction that such proposed modifications are likely to cause interference with Tenant’s operations. In the event such interference occurs, Landlord will use its best reasonable efforts to eliminate such interference in a reasonable time period. Failure of either party to comply with this paragraph shall be a material breach of this Agreement.; provided, if Tenant causes interference in violation of this Section 3.2, Tenant may power-down the equipment causing such interference and later power up such equipment for intermittent testing. In no event will Landlord be entitled to terminate this Agreement as long as Tenant is making a good faith effort to remedy the interference issue. 3.3 Landlord agrees that Tenant's ability to use the Premises is contingent upon the suitability of the Premises for Tenant's Use and Tenant's ability to obtain and maintain all Government Approvals. Landlord authorizes Tenant to prepare, execute and file all required applications to obtain EXHIBIT C September 28, 2015 FTC Mulberry BUS_RE/5691079.2 Government Approvals for Tenant’s Use under this Agreement and agrees to reasonably assist Tenant with such applications and with obtaining and maintaining the Government Approvals. Notwithstanding the foregoing, the parties acknowledge and agree that the laws, regulations, policies, and other legal or procedural requirements imposed by Landlord as a governing body with jurisdiction to review and approve or deny certain of the regulatory approvals to be sought or required of Tenant, fully apply to Tenant and will not be altered as a result of Landlord’s agreement to cooperate as the owner of the Premises in Tenant’s efforts to obtain the Governmental Approvals. 4. Rent. 4.1 Tenant will pay to Landlord as rent Twenty One Thousand Six Hundred and 00/100 Dollars ($21,600.00) per year (“Rent”). The first installment of Rent is payable within thirty (30) business days following the Commencement Date, and subsequent Rent installments will be due annually thereafter on the anniversary of the Commencement Date. Rent will increase at the beginning of any applicable Renewal Term by the amount equal to twenty percent (20%) of the Rent for the previous Term or Renewal Term. If this Agreement is terminated for any reason other than a default by Tenant, Landlord will refund pre-paid rent to Tenant on a prorated basis. 4.2 Tenant will make all payments of Rent to the Landlord at such place as the Landlord may, from time to time, designate in writing. For the present, the Landlord designates City of Fort Collins Parks Department, 413 Bryan Ave., Fort Collins, CO 80521; Attention: Dawna Gorkowski, as the place for making Rent payments. All such Rent must be paid in current legal tender of the United States or, in the alternative, by electronic funds transfer if Landlord provides Tenant with bank routing information for such purpose. The Landlord’s agreement to any extensions of time for the payment of any installment of Rent or acceptance of any money other than of the kind herein specified does not waive the Landlord’s right to insist on having all other payments of Rent made in the manner and at the time herein specified. 4.3 Any amount due to the Landlord from the Tenant under this Agreement not paid when due will result in a written default notice delivered to Tenant and, if Tenant fails to make such payment within ten (10) days of its receipt of such notice, the unpaid amount will bear interest at the rate of ten percent (10%) per annum from the due date until paid. Payments of such interest will not excuse or cure any default by the Tenant under this Agreement. In addition, if the Tenant fails to pay any installment of Rent when due and such failure continues for a period of ten (10) days following the date Tenant receives written notice of such default, the Tenant must pay to the Landlord a monthly collection service charge of five percent (5%) of the late payment amount, which is due and payable immediately. 4.4 Within sixty (60) days of Tenant’s written request, Landlord, or any successor to Landlord, hereby agrees to provide to Tenant certain documentation (the “Rental Documentation”) evidencing Landlord’s interest in, and right to receive payments under, this Agreement, including without limitation: (i) documentation, acceptable to Tenant in Tenant’s reasonable discretion, evidencing Landlord’s good and sufficient title to and/or interest in the Property and right to receive rental payments and other benefits hereunder; (ii) a complete and fully executed Internal Revenue Service Form W-9, or equivalent, in a form acceptable to Tenant, for any party to whom rental payments are to be made pursuant to this Agreement; and (iii) other documentation requested by Tenant in Tenant’s reasonable discretion. From time to time during the Term of this Agreement and within sixty (60) days of a written request from Tenant, Landlord agrees to provide updated Rental Documentation in a form reasonably acceptable to Tenant. The Rental Documentation shall be provided to Tenant in accordance with the provisions of and at the address given in Section 15. Tenant shall have no obligation to make any rental payments until Rental Documentation has been supplied to Tenant as provided herein. 5. Improvements. 5.1 Tenant has the right to construct, maintain, install, repair, secure, replace, remove and operate on the Premises the Communication Facilities. Tenant shall, at its own expense, lease from the City, (i) a fifteen (15) by twenty-five (25) foot site just north of the right field fence of the north City Park ball September 28, 2015 FTC Mulberry BUS_RE/5691079.2 field, to house Tenant's supporting equipment and structures therefor and (ii) space on the Monopole for Tenant’s antennas and related appurtenances. In addition, Tenant shall construct around the Communication Facility a six (6) foot fence with a sloped top that will prevent softballs from entering the enclosure. This fence shall be built to match the existing fenced enclosures located at the same Property. Tenant shall also fund the purchase of four trees (6’ evergreens with City Forester approval) for installation by the City in the spring of 2016; provided, Tenant shall not be responsible for installing or maintaining the trees. The Communication Facilities and Tenant’s other equipment and structures are collectively referred to hereafter as the “Tenant Facilities”. In connection with the Tenant Facilities, Tenant has the right to do all work necessary to prepare, add, maintain and alter the Premises for Tenant’s communications operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers. 5.2 Tenant has the right to replace or upgrade Tenant Facilities at any time during the term of this Lease, provided that no such replacement or upgrade shall cause Tenant to interfere with the use of the Property by others in violation of Section 3.2, or materially increase the physical or other occupation of the Property by Tenant, without written modification of this Lease. As used herein, the term “material” shall not include additions to, or replacements, upgrades or alterations of Tenant’s Facilities in whole or in part (a) within the confines of the Premises (specifically including any and all changes to equipment inside the equipment space or like for like swap of antennas and related equipment), or (b) to the extent attached to the Monopole, if the resulting addition, replacement, upgrade or alteration is of substantially the same or lesser size. 5.3 All of Tenant’s construction and installation work must be performed at Tenant’s sole cost and expense, in a good and workmanlike manner, free of all liens or encumbrances, and in compliance with all applicable laws and regulations. Tenant must maintain the Premises and Tenant Facilities in commercially reasonable condition and repair, normal wear and tear and casualty excepted. Tenant is responsible for all damages caused to the Landlord or the Landlord’s property arising from the Tenant’s exercise of the rights herein granted, and must restore all lands, landscaping, turf, fences, irrigation systems or any other improvements to a condition comparable to their condition immediately prior to installation, repair, replacement or removal of Tenant’s Facilities or related equipment, excepting normal wear and tear. 5.4 Title to the Tenant Facilities and any equipment placed on the Premises by Tenant must be held by Tenant or its lenders or assigns and such Tenant Facilities and other Tenant equipment are not fixtures. Tenant has the right to remove the Tenant Facilities at its sole expense on or before the expiration or earlier termination of this Agreement, and Tenant must repair any damage to the Premises caused by such removal. Within sixty (60) days after expiration or earlier termination of this Agreement, Tenant must remove the Tenant Facilities from the Premises and restore the Premises to the same or similar condition as it was in as of the Commencement Date, excepting normal wear and tear. Tenant will not be obligated to remove any foundation more than three (3) feet below grade level. 6. Access and Utilities. 6.1 Landlord will provide Tenant, Tenant’s employees, agents, contractors, subcontractors and assigns with access to the Premises twenty-four (24) hours a day, seven (7) days a week, at no charge to Tenant. Landlord grants to Tenant, and Tenant’s agents, employees and contractors, a non-exclusive right and easement for pedestrian and vehicular ingress and egress across the Property, as described in Exhibit B. Except in an emergency requiring immediate access, Tenant will access the Premises only during the hours that City Park is open to the public (5:00 a.m. to 11:00 p.m. as of the Effective Date.) 6.2 Landlord shall maintain any existing public access roadways from the nearest public roadway to the Premises in a manner sufficient to allow pedestrian and vehicular access at all times under normal weather conditions. Landlord is responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by Tenant’s use of such roadways. Should Landlord fail to maintain the roadways as described in this Paragraph, Tenant may repair the same or, in the alternative, terminate this Agreement. September 28, 2015 FTC Mulberry BUS_RE/5691079.2 6.3 Tenant has the right to install utilities, at Tenant’s expense, and to improve the present utilities on the Property (including, but not limited to, the installation of emergency power generators), provided that any such utilities must be located in and consistent with the Easements granted to Tenant by Landlord as set forth herein. Landlord, as owner of the Property, will use reasonable efforts in cooperation with Tenant in Tenant’s efforts to acquire necessary utility service. Tenant must install separate meters for utilities used on the Premises and pay directly to the utility company the use of power consumption. 6.4 Landlord reserves the right at all reasonable times and with reasonable notice to Tenant of not less than forty-eight (48) hours, and at all times during emergencies, for Landlord or Landlord’s agents to enter the Premises for the purpose of inspecting and examining the same. Unless such access is necessitated by genuine emergency that threatens persons or property, Tenant shall have the right to have a representative present for such inspection. Notwithstanding the foregoing, Landlord shall not have access to Tenant’s equipment shelter, unless deemed necessary by local law enforcement or fire safety personnel in the event of an emergency, and may not climb the Monopole. In the case of emergency, Landlord will notify Tenant of such access as soon as practicable following the inspection and include with such notice the nature of the emergency and inspection. 7. Taxes. Tenant acknowledges that Landlord is a tax-exempt government entity. Tenant must pay personal property taxes assessed against the Tenant Facilities and any real property taxes and all other taxes, fees and assessments attributable to the Premises and assessed as a result of Tenant’s private use of the Landlord’s otherwise tax-exempt Property. If such taxes are a pass-through from Landlord to Tenant, Landlord shall provide reasonable written evidence that such payment is due. 8. Termination. 8.1 This Agreement may be terminated without further liability as follows: (i) upon thirty (30) days written notice by either party of a default of any covenant or term hereof by the other party, which default is not cured within such thirty (30) day period, or such longer period as may be required to diligently complete a cure commenced within that thirty (30) day period; (ii) upon ten (10) days written notice by Landlord if Tenant fails to cure a default for payment of amounts due under this Agreement within that ten (10) day period, or (iii) by Tenant without further liability for any reason or for no reason, provided Tenant delivers written notice of termination to Landlord. 8.2 This Agreement may also be terminated by Landlord without further liability on thirty (30) days prior written notice if the Tenant (i) is adjudicated bankrupt or insolvent, (ii) files a petition in bankruptcy for reorganization or for the adoption of an arrangement under the Bankruptcy Act (as now or in the future amended) or (iii) makes an assignment of its property for the benefit of its creditors. 9. Destruction or Condemnation. 9.1 If the Premises or Tenant Facilities are damaged or destroyed by an act or event beyond Tenant’s reasonable control, Tenant may elect to terminate this Agreement as of the date of the damage or destruction by giving notice to Landlord no more than forty-five (45) days following the date of such damage or destruction, and Tenant will be entitled to reimbursement on a pro rata basis of any Rent prepaid by Tenant. If Tenant chooses not to terminate this Agreement, Landlord will reduce or abate the Rent in proportion to the actual reduction or abatement of use of the Premises until such time as Tenant restores the Tenant Facilities or Premises to the condition existing prior to such damage or destruction, or until 14 calendar days from the date of damage or destruction, whichever comes first. 9.2 If a condemning authority takes all of the Property, or a portion sufficient, in Tenant’s sole determination, to render the Premises unsuitable for Tenant, this Agreement will terminate as of the date the title vests in the condemning authority. The parties will each be entitled to pursue their own separate awards in the condemnation proceedings, which for Tenant may include, where applicable, the value of its Tenant Facilities, moving expenses, prepaid Rent, and business dislocation expenses, provided that any award to Tenant will not diminish Landlord’s recovery. Tenant will be entitled to reimbursement for any prepaid Rent on a pro rata basis. September 28, 2015 FTC Mulberry BUS_RE/5691079.2 10. Insurance; Subrogation; and Indemnity. 10.1 Tenant at its sole cost and expense, must procure, pay for and keep in full force and effect a policy of Commercial General Liability Insurance covering the Premises and Tenant Facilities in the amount of not less than One Million and No/100 Dollars ($1,000,000.00), per occurrence for bodily injury (including death) and property damage and $1,000,000 general aggregate. Tenant shall also maintain workers’ compensation insurance in conformity with applicable state law. Tenant’s General Liability shall be Primary and Non-Contributory, and the workers compensation coverage shall include a Waiver of Subrogation in favor of the City of Fort Collins, Colorado, its elected officials and employees. 10.2 The commercial general liability insurance carried by the Tenant shall name the Tenant as insured and include the City of Fort Collins, its elected officials and employees as an additional sinsured as their interests may appear. Upon issuance or renewal of any such insurance policy, the Tenant must provide Landlord with a certificate of insurance showing evidence of coverage that includes the City of Fort Collins as an additional insured. Such certificate must include the description of the Premises. Upon receipt of notice from its insurer, Tenant will use its best efforts to provide Landlord with 30 days’ advance written notice of cancellation of any required policy of insurance. 10.3 Any insurance policy purchased by the Tenant must be written by an insurance carrier which has a current rating by Best's Insurance Reports of "A-" (excellent) or better and a financial rating of "VII" or better, or such equivalent classification as may hereinafter be required customarily for properties similarly situated and approved by the Landlord, and the insurance carrier must be authorized by law to do business in the State of Colorado. 10.4 Notwithstanding anything to the contrary contained herein, the Tenant’s obligation to carry insurance as provided herein may be brought within the coverage of a “blanket” policy or policies of insurance carried and maintained by the Tenant 10.5 Landlord and Tenant hereby mutually release each other (and their successors or assigns) from liability and waive all right of recovery against the other for any loss or damage covered by their respective first-party property insurance policies for all perils insured thereunder. In the event of such insured loss, neither party's insurance company shall have a subrogated claim against the other. 10.6 Tenant agrees, to the fullest extent permitted by law, to indemnify, defend and hold Landlord harmless from and against any and all injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys' fees and court costs) arising directly from the installation, use, maintenance, repair or removal of the Tenant Facilities, or Tenant's breach of any provision of this Agreement, except to the extent caused by the negligent or intentional act or omission of Landlord, its employees, agents or independent contractors. Tenant shall require any contractors doing work on the Premises on behalf of Tenant to have in effect during the time of such work a policy or policies of insurance meeting the requirements of this Pargraph 10 and naming the City of Fort Collins, its elected officials and employees as additional insureds. Notwithstanding anything to the contrary in this Agreement, Tenant and Landlord each waive any claims that each may have against the other with respect to consequential, incidental or special damages. The duties described in this Paragraph 10.6 shall apply as of the Effective Date of this Agreement and survive the termination of this Agreement. 11. Assignment and Subleasing. 11.1 Tenant may assign or otherwise transfer this Agreement, without consent, to any person or entity that is authorized pursuant to and FCC licensed to operate a wireless communications business, and such person or entity is Tenant’s principal, affiliate, subsidiary of its principal or to any entity which acquires all or substantially all of Tenant’s assets in the market defined by the FCC in which the Property is located by reason of a merger, acquisition or other business reorganization; provided that notice of any such assignment or transfer must be provided to Landlord within sixty (60) days of the same. Tenant may not otherwise assign or sublease this Agreement without written approval of Landlord, which approval shall not be unreasonably delayed, withheld, conditioned or denied. September 28, 2015 FTC Mulberry BUS_RE/5691079.2 11.2 The Landlord has the right to approve all subleases. All subleases must require the subtenant to comply with the terms and conditions of this Lease including, but not limited to, the insurance and indemnification requirements of Paragraph 10 above. Tenant must disclose to Landlord all terms of any such proposed sublease, and Landlord is entitled to deny or condition any such approval, in its reasonable discretion, (i) in the event that Tenant seeks to charge rent or other compensation for sublease in addition to those amounts due to Landlord hereunder; (ii) if Tenant’s proposed sublessee is unacceptable based upon any policy, financial or management consideration of Landlord; or (iii) in the event the circumstances, terms or particulars of the proposed sublease are otherwise reasonably unsatisfactory to Landlord. 12. Title and Quiet Enjoyment. 12.1 Landlord represents and warrants that (i) it has full right, power, and authority to execute this Agreement, (ii) Tenant may peacefully and quietly enjoy the Premises and such access thereto, provided that Tenant is not in default hereunder after notice and expiration of all cure periods, (iii) it has obtained all necessary approvals and consents, and has taken all necessary action to enable Landlord to enter into this Agreement and allow Tenant to install and operate the Facility on the Premises, including without limitation, approvals and consents as may be necessary from other tenants, licensees and occupants of Landlord’s Property, and (iv) the Property and access rights are free and clear of all liens, encumbrances and restrictions except those of record as of the Effective Date. 12.2 Tenant has the right to obtain a title report or commitment for a leasehold title policy from a title insurance company of its choice. If, in the opinion of Tenant, such title report shows any defects of title or any liens or encumbrances which may adversely affect Tenant’s use of the Premises, Tenant shall have the right to terminate this Agreement immediately upon written notice to Landlord. 13. Hazardous Material. 13.1 As used herein, the term "Hazardous Material" means any solid, gaseous or liquid wastes (including hazardous wastes), regulated substances, pollutants or contaminants or terms of similar import, as such terms are defined in any applicable environmental law or regulation, and shall include, without limitation, any petroleum or petroleum products or by-products, flammable explosives, radioactive materials, asbestos in any form, polychlorinated biphenyls and any other substance or material which constitutes a threat to health, safety, property or the environment or which has been or is in the future determined by any governmental entity to be prohibited, limited or regulated by any applicable environmental law or regulation. 13.2 As of the Effective Date of this Agreement Landlord hereby represents and warrants that (i) it has no knowledge of the presence of any Hazardous Material located in, on, under, upon or affecting the Property in violation of any applicable law or regulation; and (ii) no notice has been received by or on behalf of Landlord from any governmental entity or any person or entity claiming any violation of any applicable environmental law or regulation in, on, under, upon or affecting the Property; 13.3 Landlord and Tenant must not introduce or use any Hazardous Material on the Property in violation of any applicable law. 13.4 Tenant will hold harmless and indemnify Landlord from, and assume all duties, responsibilities, and liabilities at Tenant’s sole cost and expense for payment of penalties, sanctions, forfeitures, losses, costs, or damages, and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is related to (i) Tenant’s failure to comply with any environmental or industrial hygiene law at the Property, including without limitation any regulations, guidelines, standards or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or matters as may now or hereafter be in effect, or (ii) any environmental or industrial hygiene conditions that arise out of or are in any way related to the condition of the Property resulting from the September 28, 2015 FTC Mulberry BUS_RE/5691079.2 activities conducted by the Tenant thereon, unless the environmental conditions are caused by the Landlord or other third parties not under the control of Tenant. 13.5 The indemnifications of this Paragraph 13 specifically include reasonable costs, expenses and fees incurred in connection with any investigation of Property conditions or any clean-up, remediation, removal or restoration work required by any governmental authority. The provisions of this Paragraph 13 will survive the expiration or termination of this Agreement. 13.6 If Tenant becomes aware of any Hazardous Materials on the Property, or any environmental or industrial hygiene condition or matter relating to the Property that, in Tenant’s sole determination, renders the condition of the Premises or Property unsuitable for Tenant’s use, or if Tenant believes that the leasing or continued leasing of the Premises would expose Tenant to undue risks of government action, intervention or third-party liability, Tenant will have the right, in addition to any other rights it may have at law or in equity, to terminate the Agreement upon notice to Landlord. 14. Waiver of Landlord’s Lien. Landlord hereby waives any and all lien rights it may have, statutory or otherwise concerning the Tenant Facilities or any portion thereof which shall be deemed personal property for the purposes of this Agreement, whether or not the same is deemed real or personal property under applicable laws, and Landlord gives Tenant and Mortgagees the right to remove all or any portion of the same from time to time, whether before or after a default under this Agreement, in Tenant’s and/or Mortgagee’s sole discretion and without Landlord’s consent. 15. Notices. All notices, requests, demands and other communications hereunder must be in writing and are deemed given if sent by certified mail, return receipt requested, or sent by for next-business-day delivery by a nationally recognized overnight carrier to the following addresses: If to Tenant: Verizon Wireless (VAW) LLC d/b/a Verizon Wireless 180 Washington Valley road Bedminster, New Jersey 07921 Attention: Network Real Estate If to Landlord: City of Fort Collins Parks Department Attn: Manager of Parks P.O. Box 580 Fort Collins, CO 80522-0580 With a copy to: City of Fort Collins Real Estate Services P.O. Box 580 Fort Collins, CO 80522-0580 Landlord or Tenant 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 actual receipt or refusal to accept delivery. 16. Miscellaneous. 16.1 If Tenant is to pay Rent to a payee other than the Landlord, Landlord will notify Tenant in advance in writing of the payee’s name and address. 16.2 The substantially prevailing party in any legal claim arising hereunder will be entitled to its reasonable legal fees and costs, including attorney’s fees, court costs, and costs for appeals, if any. September 28, 2015 FTC Mulberry BUS_RE/5691079.2 16.3 If any provision of the 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, will not be affected and each provision of this Agreement will be valid and enforceable to the fullest extent permitted by law. 16.4 Terms and conditions of this Agreement which by their sense and context survive the termination, cancellation or expiration of this Agreement will so survive. 16.5 This Agreement is governed under the laws of the State of Colorado and is binding on and inures to the benefit of the successors and permitted assignees of the respective parties. 16.6 A Memorandum of Agreement in the form attached hereto as Exhibit C may be recorded by Tenant confirming the (i) effectiveness of this agreement, (ii) expiration date of the Term, (iii) the duration of any Renewal Terms, and/or other reasonable terms consistent with this Agreement. If Tenant records a Memorandum of Agreement, Tenant will promptly provide a copy of the recorded document to Landlord. 16.7 All Exhibits referred herein are incorporated herein for all purposes. 16.8 This Agreement constitutes the entire Agreement between the parties, and supersedes all understandings, offers, negotiations and other leases concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments, modifications or waivers of any of the terms and conditions of this Agreement must be in writing and executed by both parties. 16.9 All financial obligations of the Landlord for fiscal years subsequent to the year of the Effective Date are contingent upon the appropriation by the Fort Collins City Council, in its sole discretion, of funds sufficient and intended for such purposes. 16.10 Nothing contained herein shall be deemed or construed by the parties hereto nor by any third party as creating the relationship of principal and agent or a partnership or a joint venture between the parties hereto, it being agreed that none of the provisions set forth herein nor any acts of the parties herein shall be deemed to create a relationship between the parties hereto other than the relationship of Landlord and Tenant. IN WITNESS WHEREOF, the parties have entered into this Agreement effective as of the date first above written. LANDLORD: THE CITY OF FORT COLLINS, COLORADO, a municipal corporation By: ________________________________________ Wade Troxell, Mayor ATTEST: ________________________________ City Clerk APPROVED AS TO FORM: September 28, 2015 FTC Mulberry BUS_RE/5691079.2 ________________________________ Senior Assistant City Attorney TENANT: Verizon Wireless (VAW) LLC d/b/a Verizon Wireless By: ____________________________________ Name: Rick Goldschmidt Title: Executive Director - Network Date: ___________________________________ September 28, 2015 FTC Mulberry BUS_RE/5691079.2 EXHIBIT A DESCRIPTION OF LAND A tract of land located in the E ½ of the SW ¼ of Section 10, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado (City Park Golf Course/Ball Park), Larimer County Assessor’s Parcel No. 9710300922, and Lot 1, Fort Collins Housing Authority Subdivision, Fort Collins, County of Larimer, State of Colorado, Larimer County Assessor’s Parcel No. 9710316901 September 28, 2015 FTC Mulberry BUS_RE/5691079.2 EXHIBIT B DESCRIPTION OF PREMISES A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED HERETO EXHIBIT B B-1 EXHIBIT B Site Name: FTC Mulberry 096002.377/Lease Agreement FTC Mulberry Site Name: FTC Mulberry B-2 096002.377/Lease Agreement X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 48201 5/14/15 Site Name: FTC Mulberry 096002.377/Lease Agreement B-3 FTC Mulberry X X X X X X X X X X X X X X X X X X X X X X X EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP EP X X X X X X X X X X X X X X X X X X X X X X X X 48201 5/14/15 FTC Mulberry Site Name: FTC Mulberry 096002.377/Lease Agreement B-4 48201 5/14/15 Site Name: FTC Mulberry 096002.377/Lease Agreement B-5 FTC Mulberry X X X X X X X EP EP EP EP EP EP X X X X X X X FO FO FO FO FO FO FO FO E E E E E 37654 Site Name: FTC Mulberry 096002.377/Lease Agreement B-6 FTC Mulberry September 28, 2015 FTC Mulberry BUS_RE/5691079.2 EXHIBIT C COMMUNICATIONS FACILITY To the Agreement dated __________________, 2015, by and between is between Verizon Wireless (VAW) LLC d/b/a Verizon Wireless (“Tenant”), and THE CITY OF FORT COLLINS, a Colorado municipal corporation (“Landlord”). RECORDED AT REQUEST OF, AND WHEN RECORDED RETURN TO: Sherman & Howard L.L.C. 633 17th Street, Suite 3000 Denver, Colorado 80202 Attn: Eileen Lynch Re: DEN Mulberry COPY TO: City of Fort Collins Real Estate Services 300 Laporte Ave., Bldg. B P.O. Box 580 Fort Collins, CO 80522 MEMORANDUM OF AGREEMENT APN: 97103-00-922 This MEMORANDUM OF AGREEMENT is entered into on _______________, 2015, by THE CITY OF FORT COLLINS, a Colorado municipal corporation, with an address at 300 Laporte Ave., Fort Collins, CO 80522 (hereinafter referred to as (“Landlord”) and Verizon Wireless (VAW) LLC d/b/a Verizon Wireless, with an address at 180 Washington Valley Road, Bedminster, New Jersey 07921, Attn: Network Real Estate (hereinafter referred to as (“Tenant”). 1. Landlord and Tenant entered into a Lease Agreement (“Agreement”) dated as of _______________, 2015, effective upon full execution of the parties for the purpose of Tenant undertaking certain Investigations and Tests and, upon finding the Property appropriate, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Agreement. 2. The term of Tenant’s tenancy under the Agreement is for five (5) years commencing __________________, 2015 (“Term Commencement Date”), and terminating on the Term Commencement Date with four (4) successive five (5) year options to renew. 3. The property that is the subject of the Agreement is described in Exhibit A annexed hereto. The portion of the Land being leased to Tenant and all necessary access and utility easements (the “Premises”) are set forth in the Agreement. September 28, 2015 FTC Mulberry BUS_RE/5691079.2 In witness whereof, the parties have executed this Memorandum of Agreement as of the day and year first written above. LANDLORD: THE CITY OF FORT COLLINS, COLORADO, a municipal corporation By: _________________________________ Wade Troxell, Mayor Date: _______________________________ STATE OF COLORADO ) ) ss COUNTY OF LARIMER ) I certify that I know or have satisfactory evidence that Wade Troxell is the person who appeared before me, and said person acknowledged that she signed this instrument, on oath stated that she was authorized to execute the instrument and acknowledged it as the Mayor of THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: ________________________ Notary Public Print Name My commission expires (Use this space for notary stamp/seal) September 28, 2015 FTC Mulberry BUS_RE/5691079.2 TENANT: Verizon Wireless (VAW) LLC d/b/a Verizon Wireless By: ______________________________________ Rick Goldschmidt Title: Executive Director - Network Date: ____________________ STATE OF _________________________ ) ) ss COUNTY OF _______________________ ) I certify that I know or have satisfactory evidence that Rick Goldschmidt is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the Executive Director - Network of Verizon Wireless (VAW) LLC d/b/a Verizon Wireless to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: ________________________ Notary Public Print Name My commission expires (Use this space for notary stamp/seal)