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HomeMy WebLinkAbout2011-204 Orange County - State of North Carolina for Communications Tower Lease AgreementROY COOPER ATTORNEY GENERAL State of North Carolina Department of Justice PO BOx 629 Raleigh, North Carolina 27602 September 14, 2011 ~ pmt srnre atio~ i W ~ u - . ro a= ``~~~" Orange County Emergency Services Attn: Captain Craig Blackwood Post Office Box 8181 Hillsborough, North Carolina 27278 .~,b1> Reply to: Mark Teague Property Control Section Telephone: (919)733-7408 FAX: (919) 733-2947 gtea~uetFncdoi. eov 12E: Communications Tower Lease Agreement -County of Orange Our File No. 019-AG Dear Mr. Blackwood: For your records, please find enclosed a copy of the properly executed Communications Tower Lease Agreement with the State of North Carolina. If you have any questions, please do not hesitate to call. Very truly yours, ~~~- Mark Teague Assistant Attorney General GMT/dp Enclosure cc: LTNC-TV, Don Smith ~~~b~. STATE OF NORTH CAROLINA COUNTY OF CHATHAM COMMUNICATIONS TOWER LEASE AGREEMENT THIS COMMUNICATIONS TOWER LEASE AGREEMENT ("Lease") made and entered into as of the last date set forth in the notary acknowledgements below, by and bettiveen, the STATE OF NORTH CAROLINA, a body politic and corporate, hereinafter referred to as "Lessor", and COUNTY OF ORANGE, a political subdivision of the State of North Carolina, hereinafter referred to as "Lessee" (Lessor and Lessee are each individually referred to herein as a "Party" and collectively referred to herein as the "Parties"); WITNESSETH: THAT WHEREAS, Lessor owns that certain parcel of land located at 4401 Jones Ferry Road, Chapel Hill, Chatham County, North Carolina, containing 61.64 acres, more or less, having tax parcel number 62226 (the "Site"), as more particularly described in the files of the State Property Office, a division of the North Carolina Department of Administration, located in Raleigh, North Carolina; and, WHEREAS, Lessor has improved the Site with a communications tower ("Tower"), equipment building(s) and related appurtenances and accessories; and, WHEREAS, Lessor and Lessee desire to enter into this Lease so that Lessee may operate and maintain certain Communications Equipment, as said term is defined herein, on the Tower; and, WHEREAS, the University of North Carolina, Center for Public Television ("UNC- TV"), has requested and approved the execution of this instrument for the purposes herein specified; and, WHEREAS, the execution of this Lease for and on behalf of Lessor has been duly approved by the Governor and Council of State at a meeting held in the City of Raleigh, North Carolina, on the Sth day of October, 2010; and, WHEREAS, the Parties have mutually agreed to the terms of this Lease as hereinafter set out. NOW THEREFORE, in consideration of the rental hereinafter agreed to be paid and the teiTns and conditions hereinafter set forth, Lessor does hereby let and lease unto Lessee and Lessee hereby takes and Leases from Lessor for and during the period of time and subject to the terms and conditions hereinafter set out the Premises as more particularly described herein. 1. Premises. The "Premises" consists of such non-exclusive space at approximately the 1,000-foot height level of the Tower as necessary to accommodate Lessee's Communications Equipment. The exact location of the space on the Tower at which Lessee may locate its Communications Equipment shall be designated by Lessor in its reasonable discretion. Page 1 of 4 2s~ Term. The term of this Lease shall be for a period of five (5) years, commencing on the 1 day of February, 2011 and terminating on the 31 S` day of January, 2016 (the "Term"). 3. Rent. Lessee shall pay to Lessor as rental for the Premises, the sum of ONE DOLLAR ($1.00) for the Term. 4. Use of the Premises. Lessee shall use the Premises for the operation of an emergency responder communications network and for no other purpose without the prior written consent of Lessor. Lessee's use of the Premises shall at all times be in compliance with UNC-TV's Tower Equipment Installation and Maintenance Practices, attached hereto and incorporated herein as Exhibit A (as may be amended fiom time to time, "UNC-TV's Installation and Maintenance Practices"). Lessee shall not use or knowingly permit any part of the Premises to be used for any unlawful purpose, nor for any purpose or in any manner which is in violation of any present or future Federal, State or local governmental laws or regulations, or which will constitute a public or private nuisance, nor for any business, use, or purpose deemed disreputable or extra hazardous. Lessee agrees that its use of the Premises and the operation of its Communications Equipment shall be consistent with the quiet use, occupancy and enjoyment of the Tower and the Site by Lessor. 5. Communications Equipment. Lessee shall have the right to install on or about the Premises the equipment listed on Exhibit B attached hereto and incorporated herein by this reference (collectively, the "Communications Equipment"). 6. Installation, Alteration, Maintenance and Repair. The Communications Equipment shall be installed, operated and maintained at Lessee's sole cost and expense in accordance with the terms of this Lease and UNC-TV's Installation and Maintenance Practices. During the Term, Lessee shall have the right to replace, repair, add, alter or otherwise modify its Communications Equipment; provided that any such repair, addition, alteration or modification receives the prior written approval of LTNC-TV and is consistent with UNC-TV's Installation and Maintenance Practices. Lessee shall not drill, cut, saw, burn, add to or remove any part of the Tower without the prior written consent of Lessor. Lessor will maintain the Tower and the Site, excluding the Communications Equipment, in good condition, reasonable wear and tear, circumstances over which Lessor has no conhol or for which Lessee is responsible pursuant to this Lease, excepted. 7. Fixtures. Lessor hereby acknowledges and agrees that the Communications Equipment is and shall remain the property of Lessee and shall not be, become or be deemed by Lessor to be fixtures upon the Tower or the Site. 8. Condition of Premises. Lessor agrees to deliver the Premises to Lessee in its present condition. Except as otherwise expressly provided herein, Lessee acknowledges that the Premises is being delivered "as is," that Lessee has performed preliminary investigations and reviews and has concluded on its own judgment that the Premises is suitable for the purposes intended, tivithout any representations or warranties of any kind (including, without limitation, any express or implied warranties of merchantability or fitness) from Lessor or any agent of Lessor. Lessees's entry into possession shall constitute conclusive evidence that as of the date thereof the Premises is in good order and satisfactory condition. Page 2 of 9 9. Utilities and Other Services. Lessor shall permit Lessee access to its electric power source so that Lessee may obtain all electrical energy required to operate the Communications Equipment. 10. Governmental Approvals and Compliance. Lessee, at its sole cost and expense, shall obtain any necessary governmental licenses or authorizations required for the installation, repair, alteration, improvement, or expansion of its Communications Equipment and shall comply with government regulations applicable to its operations, inchiding those of the Federal Communications Commission ("FCC"), the Federal Aviation Administration ("FAA"). Lessor agrees that the Tower and its operations shall meet applicable rules and regulations of the FCC and the FAA, as well as all applicable State codes and regulations. 11. Conditions Precedent to Installation or Modification. Notwithstanding anything to the contrary herein, the Parties agree that Lessee's right to install its Communications Equipment or to make any rnodif cations to its Communications Equipment at the Premises shall not commence until Lessee, at its sole cost and expense, completes the following, as applicable: (i) tenth order inter-modulation study; (ii) update of the most recent Tower loading analysis; (iii) provision for commercial electric service and emergency power to operate its Communications Equipment; and {iv) receipt of all required permits (if any) for the installation of, or modification to, its Communications Equipment and all required regulatory or governmental approvals of Lessee's proposed use of the Premises. Lessor shall have the right to review said inter- modulation study, Tower loading analysis and governmental permits to determine if Lessee's Communications Equipment cause degradation to Lessor's communications system or adversely affect the physical and structural capacity of the Tower. If, after reviewing said inter-modulation study, Tower loading analysis and governmental permits, Lessor determines in its sole discretion that the installation of, or modification to, Lessee's Communications Equipment will result in a . degradation of Lessor's communication system or adversely affect the physical and structural capacity of the Tower, Lessee shall, at its sole cost and to the satisfaction of Lessor, make any modifications, upgrades or improvements to its Communications Equipment necessary to prevent any disruption to Lessor's system or any impauYnent to the structural integrity of the Tower. 12. Lessor's and Lessee's Rights in the Event of Interference. The Communications Equipment shall be designed, constructed, installed, maintained, and operated in compliance with the applicable rules and regulations of the FCC and good engineering practices, Lessee confirms to Lessor that the installation and use of the Communications Equipment will not interfere with the operation of any other equipment on the Tower. In the event the Communications Equipment causes interference with other equipment on the Tower, Lessee shall proceed immediately to correct and eliminate the interference. Lessee shall cease operation of the Communications Equipment until the cause of such interference is removed. Should interference reasonably objectionable to Lessee be caused by Lessor's equipment, Lessor shall cooperate with Lessee to eliminate such interference. Lessee expressly agrees to pay for such equipment as may be necessary to prevent its interference with any radio transmissions by Lessor, and will also be responsible for purchasing any equipment to correct any interference that Lessor's equipment may cause in Lessee's use and operation of its Communications Page 3 of 9 Equipment. If interference caused by the Communications Equipment is not corrected and eliminated within thirty (30) days after Lessee is notified of the interference, then Lessor may terminate this Lease forthwith without liability to Lessee. 13. Lessor's Right of Access. Lessor, its agents and employees, shall have the right to enter upon the Tower and the Premises at all times in order to examine same, or to make such alterations, repairs, or improvements to same as Lessor may deem necessary or desirable, without such entry constituting an eviction of Lessee in whole or in part, or a breach of this Lease. 14. Lessee's Right of Access.. Throughout the Term, Lessee shall have the .non-exclusive right of access to the Premises for the purposes of installing, inspecting, maintaining, operating, repairing, altering, replacing and removing its Communications Equipment; provided that in order to maintain security at the Site, Lessor may require Lessee to obtain its prior approval, except in instances constituting an emergency, before accessing the Premises. During such time as Lessee's agents and employees are on or about the Premises, they shall not disturb or interfere with Lessor's operations. 15. Fire or Other Casualty Loss. a. If the Tower or Premises is totally or partially destroyed by wind, explosion, fire, or casualty of any kind, either Lessor or Lessee shall have the option of terminating this Lease or any renewal thereof, upon giving written notice at any time within thirty (30) days from the date of such destruction. b. If the Tower or Premises should be partially damaged by wind, explosion, fire, or casualty (or if totally and completely destroyed} and neither Party elects to terminate this Lease within the provisions of subparagraph (a) above, then in either event, Lessor agrees, at Lessor's sole cost and expense, to restore the Tower, as may be applicable, to a condition substantially similar to that immediately prior to such destruction or damage. Lessor shall not be liable for any interruption of Lessee's operations occasioned by electrical interference, wind, explosion, fire or other cause or casualty of any kind. c. If Lessor undertakes to restore, rebuild, or repair the Tower in accord with the provisions of subparagraph (b} above, and such restoration, rebuilding or repair is not accomplished within one hundred eighty (180) days fiom the date of the casualty, Lessee shall have the right to immediately terminate this Lease by written notice to Lessor. 16. Insurance. Lessee shall obtain adequate insurance coverage in accordance with alI applicable laws for (i) workers' compensation, (ii) automobile liability and (iii) fire and extended coverage, with regard to Lessee's activities on or about Premises and its Communications Equipment located on the Premises. Lessee shall require any of its contractors or agents entering the Premises to obtain and keep in place with well rated insurers, authorized to do business in the State of North Carolina, adequate insurance coverage, as applicable, for (i) statutory workers' compensation including employers' liability; (ii) comprehensive general liability including personal injury, broad form property damage, independent contractor, XCU (explosion, collapse, Page 4 of 9 underground) and products/completed operations; (iii) automobile liability; and (iv) fire and extended coverage insurance. Notwithstanding the rights of any insurer, nothing herein shall affect the authority of the Attorney General of North Carolina, including but not limited to, the Attorney General's authority to represent Lessor in any and all litigation. 17. Lessee's Liability. As between Lessee and Lessor, Lessee, subject to the terms of this Lease, shall be primarily liable for the negligent or intentional acts or omissions of its agents, contractors or employees. As to third parties, to the extent covered, in accordance with applicable law, by any insurance policy or reserve fund, Lessee agrees to save Lessor harmless from and against any and all loss, damage, claim, demand, liability, or expense, including reasonable attorney fees, by reason of damage to person or property on or about the Premises, which may arise or be claimed to have arisen as a result of the use of the Premises by Lessee or which may arise out of the installation, operation, repair, maintenance, inspection, or removal of Communications Equipment by Lessee, its agents or employees, except where such loss or damage arises from the willful or negligent misconduct of Lessor, its agents or employees. 18. Environmental Laws. Lessee represents warrants and agrees that it will conduct its activities on the Premises and the Site in compliance with all applicable environmental laws. Lessee will be liable for the existence or discovery of any hazardous substance on or about the Premises or the Site or for the migration of any hazardous substance to other properties or for the release of any hazardous substance into the environment in violation of applicable environmental laws, arising solely from Lessee's use of the Premises. Lessee shall be responsible for, and promptly conduct any investigation and remediation as required by any environmental law or common law, of all spills or other release of hazardous substances, that may occur as result of Lessee's use of the Premises. Lessee agrees to save Lessor harmless from and against any and ali liens, demands, defenses, suits, proceedings, disbursements, liabilities, losses, litigation, damages, judgments, obligations, penalties, injuries, costs, expenses (including, without limitation, attorneys' and experts' fees) and claims of any and every kind whatsoever paid, incurred, suffered by, or asserted against Lessor with respect to, or as a direct or indirect result of the violation of any environmental laws applicable to the Premises or the Site, caused by or within the control of Lessee, specifically including any cost incurred in connection with the investigation of site conditions or the cleanup, remediation, removal, or restoration work required by any governmental authority. 19. Right to Terminate. Either Party may terminate this Lease at any time by giving the other Party not less than thirty (30) days written notice of its intent to so terminate. 20. Surrender Upon Termination of Lease. Upon the expiration of the Term or the earlier termination of this Lease, Lessee shall surrender the Premises in as good condition as at the beo nning of the Term, reasonable use and wear by the elements excepted. The Communications Equipment and other apparatus installed by Lessee shall remain the property of Lessee and shall be removed from the Tower and the Site at Lessee's own expense without damage or injury to the Tower, the Site or any other property of Lessor. 21. Assignment and Subleasing. Lessee shall not assign this Lease or sublet the Premises or any part thereof without the prior written consent of Lessor. Page S of 9 22. Waiver. The failure or delay by either Party to exercise any right, power or privilege hereunder shall not operate as a waiver thereof. 23. Interpretation. The terms "lease," "lease agreement" or "agreement" shall be inclusive of each other, and also shall include renewals, extensions, or modifications of this Lease. Words of any gender used in this Lease shall beheld to include any other gender, and words of the singular shall be held to include the plural and the plural to include the singular when the sense requires. The paragraph headings and the titles are not a part of this Lease and shall have no effect upon the construction and interpretation of any part hereof. 24. Applicable Law. This Lease shall be governed by, consri-ued and enforced in accordance with the laws of the State of North Carolina and court actions arising therefrom may be brought only within the courts of the State of North Carolina. 25. Construction. No provision of this Lease shall be construed against or interpreted to the disadvantage of any Party by any court or other governmental or judicial authority by reason of such Party's having or being deemed to have prepared or imposed such provision. 26. Memorandum of Lease for Recording. At the request of either Party, Lessor and Lessee shall execute a memorandum of this Lease, which shall be recorded in the public records at the requesting Party's sole cost and expense. The memorandum of Lease shall describe the Parties, set forth a description of the Premises, specify the term of the Lease and incorporate this Lease by reference. 27. Entire Agreement. This instrument contains the entire agreement between the Parties, and no statement, premise, inducement, representation or prior agreement which is not contained in this written Lease shall be valid or binding. 28. Amendment. No amendment, modification, alteration or revision of this Lease shall be valid and binding unless made in writing and signed by Lessee and Lessor. 29. Binding Effect. This Lease shall be binding upon and shall inure to the benefit of the Parties, their successors and permitted assigns. 30. Terms. Capitalized terms used in this Lease shall have the meanings asciYbed to them at the paint where first defined, irrespective of where their use occurs, with the same effect as if the definitions of such terms were set forth in full and at length every time such terms are used. 31. Counterparts. This Lease may be executed in two or more counterparts, each of which shall be deemed an original, and all of such counterparts together shall constitute one and the same instrument. 32. Lessor's Remedies Cumulative. The rights and remedies of Lessor specified in this Lease shall be cumulative and in addition to any other rights and/or remedies otherwise available, whether or not specified in this Lease. Page 6 of 9 33. Prohibition on Gifts. North Carolina General Statute §133-32 and Executive Order 24, as applicable, prohibit the offer to, or acceptance by, any employee of Lessor of any gift from anyone with a contract with Lessor, or from any person seeking to do business with Lessor. By execution of this Lease, Lessee attests, for its entire organizatian, including its employees or agents, that it is not aware that any such gift has been offered, accepted, or promised by any employees of its organization. 34. Notices. All notices herein provided to be given, or which may be given by either party to the other, shall be deemed to have been fully given when made in writing and deposited in the United States mail, .certified and postage prepaid and addressed as follows: to Lessor: UNC-TV Attn: Lease Coordinator Post Office Box 14900 Research Triangle Park, North Carolina 27709 with copy to: State Property Office Attn: Space Planning and Leasing Manager 1616 Mail Service Center Raleigh, North Carolina 27699-1616 to Lessee: County of Orange Attn: County Manager Post Office Box 8181 Hillsborough, North Carolina 27278-8181 Nothing herein contained shall preclude the giving of such notice by personal service. The address to which notices shall be mailed as aforesaid to either Party may be changed by written notice. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Page 7 of 9 IN TESTIMONY WHEREOF, this Lease has been executed by the Parties, in duplicate originals, as of the dates set forth in the notary acknowledgements below. LESSEE: COUNTY F OR,ANGE~ By: Print Name: Gc.rt ~. ~ ~ Yl ~2.. Title: CO u.h.~'~-{ Jl/(, a na-(tt/ I, ~ y ; ~ ~~ a Notar Public in and for the aforesaid ®-~ ` ~ ~ ~ y County and State do hereby certify that ~~. one ~ ~~ k e fi' personally came before me this day and acknowledged that he/shy is Clerk of the County of Orange and that by authority duly given and as an act of County of Orange, the foregoing instrument was signed -~ , ..--- by F~~n~ (,.~, ~-~I~~~h ;- -fir- ,its ~.o ~ (title) attested by himself/herself as Clerk and sealed with the common seal. IN WITNESS WHEREOF, I have hereunto set my hand and Notaxial Seal, this the ~~ ~ day of _ ~ , 2011. My Commission Expires: J ~~ ~ 2-C~ 14- 1 y Public Print Name: lea v }a ~>1 OFFICIAL SEAL Notary Public, NortY~ Carolina ORANGE COUNTY .~`~. DAVID HUNT My Commission Expires Page 8 of 9 LESSOR: STATE OF NORTH CAROLINA By: F!-.sea overnor ATT By: ~'. Se retary of State APPROVED AS TO FORM: R C OPER, orney General By: Assistant A rney General STATE OF NORTH CAROLINA COUNTY OF WAKE ~I, ~1~.~flY\\P_ ~ ~ ~U~;iY 1 t~ a Notary Public in and for the County of Yl {~•S~ and State of North Carolina, do hereby certify that ELAINE F. MARSHALL, Secretary of State of North Carolina, personally came before me this day and aclrnowledged that she is Secretary of State of North Carolina, and that by authority duly given and as the act of the State, the foregoing instrument was signed in its name by BEVERLY EAVES PERDUE, Governor of the State of North Carolina, sealed with the Great Seal of the State ofNorth Carolina, and attested by herselfas Secretary of State of North Carolina. IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal, this the ~~ day of Vl~, 2011. JENNELL BAUGHMAN `_ Notary Pubiic Y~~--~~ v Johnston County Nota Public , State of North Carolina Print Name: ~ ~ 7 My Commission Expires Nov 21, 201 1 My commission expires: Revised 9/I2/03 University of North Carolina Center for Public Television Tower Equipment Installation and Maintenance Practices The University of North Carolina Center for Public Television (tTNC-TV) is part of an agency of the state of North Carolina. As such UNC-TV is prohibited from commercially leasing tower space but it can provide tower space to Federal, State and Local government agencies as well as non-proot organizations that would be using the site to serve the public interest. 1. INSTALLATION GUIDELINES A) All antennas, transmission lines, equipment, mounting devices, and cables to be installed at the site must be approved by UNC-TV or its structural consultant. In some cases a structural analysis might be required to determine the structural loading capabilities of the tower. UNC-TV will not permit any installations that exceed the structural capacity of the tower. B) Written approval for the allowed equipment along with the location that the equipment can be installed will be provided to the user in the form of a Communications Tower Use and License Agreement. C) Apre-construction meeting must be held at the site prior to the commencing of work. D) All transmission and control cables are to be securely fastened to the tower. Transmission Lines are to be installed according to the manufacturer's guidelines and supported with the use of cable "butterfly" clamps designed for that particular model cable. Wrap-lock straps may be used on short runs of small flexible cable. The securing of lines using nylon ties or electrical tape is strictly prohibited. E) All metallic materials installed on the tower including brackets, bolts, nuts, and washers must be either stainless steel orhot-dipped galvanized. b~ No drilling, punching, ar welding to any part of the tower will be permitted. No removal or alteration of the tower structure is allowed. G) All work performed on the tower will be performed by a UNC-TV approved contractor. A copy of the contractor's proof of insurance must be on file with UNC-TV before work at the site will be allowed. EXHIBIT A ,~ EXHIBI'T' ~ • {2) DB-224A or equivalent rivo-way communications antennas located at approximateh~ 1000 feet in elevation on the tower. • {1) Ail weather two-way communications repeater cabinet to be located on the totiver's communications platform at 1000 feet on the totiver. Each cabinet can be no larger than 3 feet wide by 2 feet deep by 6 feet tall and cannot have a combined weight of cabinet and equipment that exceeds 300 pounds. • Connection to the communications platform electrical panel. The equipment in the cabinet can draw no more than 20 amps at 120 or 208 volts. • Cables sufficient to connect the rivo-way communications repeater cabinet to the electrical panel and to the antennas installed of about 1000 feet on the tower. a s.. ~`° :~F ~ ~'r,