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HomeMy WebLinkAboutResolution 2011-095 utility sharing agreement for beacon hill MARANA RESOLUTION NO. 2011-95 RELATING TO TECHNOLOGY SERVICES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A UTILITY SHARING AGREEMENT BETWEEN THE TOWN OF MARANA, PIMA COUNTY AND VERIZON WIRELESS, LLC FOR BEACON HILL WHEREAS on January 4, 2005, the Town Council adopted Marana Resolution No. 2004 -153, approving the Beacon Hill Communication Site Lease and Settlement Agreement with the Estate of Irene Welter, Deceased; and WHEREAS the Site Lease and Settlement Agreement provides that the Town shall pay for the electricity it consumes in its operations on Beacon Hill and that the Town has the right to draw electricity from existing utilities on the property or to obtain separate utility service from a utility company; and WHEREAS the Town has historically drawn its electricity on Beacon Hill from a transmis- sion line located on Beacon Hill that is owned by Verizon Wireless; and WHEREAS Verizon Wireless and the Town do not have a formal agreement regarding the Town's use of electrical power from Verizon Wireless' transmission line on Beacon Hill, but desire to enter into a formal agreement regarding same; and WHEREAS in early 2011, Pima County entered into a Site Lease with the Estate of Irene Welter, Deceased allowing Pima County to use Beacon Hill for operations related to the Pima County Wireless Integrated Network (PCWIN); and WHEREAS Pima County desires to draw electricity from Verizon Wireless' transmission line on Beacon Hill and Verizon Wireless desires to allow Pima County to draw electricity from the line; and WHEREAS in order to accommodate the increased electrical load on Verizon Wireless' transmission line on Beacon Hill due to Pima County's activities on Beacon Hill, work must be completed on the property, including the installation of sub- meters at the Town's and Pima County's sites on Beacon Hill; and WHEREAS the Town, Pima County and Verizon Wireless desire to enter into an agreement regarding the work to be completed on Beacon Hill in order for the parties to share electricity on the property; and WHEREAS the Town Council finds that entering into a utility sharing agreement with Pima County and Verizon Wireless is in the best interests of the Town and its residents. Marana Resolution 2011 -95 - 1 - { 00028079.DOC /} NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, as follows: SECTION 1. The Utility Sharing Agreement attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. SECTION 2. The Town's Manager, Technology Services Director, and staff are hereby di- rected and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the Utility Sharing Agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE OWN OF MA- RANA, ARIZONA, this 4` day of October, 2011. Mayor Ed Honea ATTEST: ,,OFIN,j���� � �C� Jocel Bronson, Town Clerk s SF' L 11U� APPROVED AS TO FORM: idy, Town A rney Marana Resolution 2011 -95 -2- {00028079.DOC !} PIMA COUNTY STRATEGIC PLANNING OFFICIO PROJECT: UTILITY SHARING AGREEMENT CONTRACTOR; VERION WIRELESS AMOUNT: $ 12,000. 00 AM ENDM ENT NO, FUNDING: GENERAL FUND This -rturn er rrust appear on all Invoic s, correspondence and documents pertaining 10 this �onlrst. (STAMP HERE UTILITY SHARING AGREEMENT THIS Utility Sharing Agreement (the: "CONTRACT "); is entered into between Prima County, a body politic and corporate of the State of Arizona, ( "COUNTY"), the Town of Marana, an Arizona municipal corporation ( "TOWN "), and Verizon Wireless (VAW) LLC a Delaware limited liability company, dfbla Verizon Wireless ("Verizon Wireless "). WiTNESSETH WHEREAS, COUNTY is the ground lessee under that certain` ' "Lease Agreement for the PCWIN Cormunications Site on Beacon Hill ", Pima County Contract # 1,43702; recorded in the Pima County Recorder's Office on February 9, 2011 at Sequence 20110400324 (the "PCWIN Site ") for a portion of that property located at 10001 N. Siluerbell Rd. , Tucson, AZ 85743 (the "Property "), which Property is legally described in Exhibit C, attached hereto and incorporated herein by this reference; and WHEREAS, TOWN is the ground lessee under that certain "Beacon Hill Communications Site Lease and Settlement Agreement, recorded in the Pima County Recorder's office on January 14, 2005, at Docket 12469, Page 3461, as amended by the "First Amendment to Beacon Hill Communications Site Lease and Settlement Agreement," recorded In the Pima County Recorder's office on December 30, 2010 at Docket 13966, Page 415 and the "Second Amendment to Beacon °Hill Communications Site Lease" recorded in the Pima County Recorder's office on February 16,:2011 at Sequence 20110470647 for a portion of the Property (the "Town Site ") adjacent to the PCWIN Site; and WHEREAS, pursuant to that certain' Tower' Lease Agreement dated February 1, 998% as amended by the First Amendment to Tower Lease Agreement dated May 5, 2007 (as amended, the "Verizon Wireless Lease"), Verizon Wireless leases a portion of the Property that is adjacent to the PCWIN Site and Town. Site (the "Verizon Wireless Site " }, and WHEREAS, Verizon Wireless supplies power to the Verizon Wireless Site through a TUC-go" Electric Power ( "TEP ") transmission line (the "TEP Line "), which connects from a TIP- owned transformer located at the base of Beacon Hill up along the hill to a Verizon Wireless -owned transformer located at the top of Beacon Hill, which is located on the Property (the' transmission line from the Verizon Wireless -owned transformer and the Verizon Wireless -owned transformer shall hereinafter be referred to as the "VZW Line "); and WHEREAS, COUNTY desires to Utilize power from Verizon Wireless by connecting the COUNTY's facilities located on the PCWIN Site to the TEP Line for the purpose of powering the COUNTY's facilities and equipment located on the PCWIN Site, and WHEREAS, TOWN desires to utilize power from Verizon Wireless by connecting the TOWN's facilities located on the Town Site to the TEP Line for the purpose of powering the TOWN's facilities and equipment, to include the equipment of the TOWN's sublessees and contractors, located on the Town' Site; and - 1,,, WHEREAS, the COUNTY and the TOWN desire to reimburse Verizon Wireless for their actual power usage through payment to Verizon Wireless of such share in accordance with the terms and conditions of this CONTRACT, and Verizon Wireless is willing to enter into such an arrangement. NOW, THEREFORE, the parties hereto agree as follows: ARTICLE I - TERM AND EXTENSION /RENEWAL/CHANGES This CONTRACT, as authorized by the Pima County Board of Supervisors for the COUNTY and the Town of Marana Council for the TOWN, shall commence upon full execution by the parties and shall terminate on December 31, 2036, unless.sooner terminated or further extended as permitted under this CONTRACT. Any modification, or extension of the CONTRACT termination date, shall be by formal written' amendment executed by the parties hereto. Amendments to the CONTRACT shall not be effective until approved by the Board of Supervisors or the Procurement Director, as required by the Pima County Procurement code, for the COUNTY and by the Town of Marana Council for the TOWN. ARTICLE II — SCOPE OF WORK This CONTRACT establishes the agreement under which COUNTY will perform the work necessary to accommodate the electrical loading for the facilities located at the PCWIN Site, Verizon Wireless Site and the Town Site, and under which Verizon Wireless will provide COUNTY and TOWN with access to the TEP Line, all of which is described in Exhibit A: Scope of Work (1 page), attached hereto and incorporated herein by this reference. COUNTY shall be responsible for the performance of all work described in Exhibit A and for the payment of all costs associated with the performance of the work described in Exhibit A. COUNTY shall obtain any and all necessary permits from the TOWN prior to commencing any work on the Property. ARTICLE III - OWNERSHIP OF LINE If the Verizon Wireless Lease expires or is otherwise terminated, or if Verizon Wireless determines that the Verizon Wireless Site will no longer be used, it shall convey ownership and control of those portions of the VZW Line owned by Verizon Wireless, to the COUNTY, in its as -is then - current condition without warranty, pursuant to the form Bill of Sale attached hereto and incorporated herein by this reference as Exhibit B. Upon conveyance of ownership and control of said portions of the VZW Line owned by Verizon Wireless, Verizon Wireless shall be relieved of all liability arising out of the use of said portions, and shall have no further obligation to the COUNTY or TOWN under this CONTRACT or otherwise. The COUNTY will be liable for any and all damage caused to Verizon Wireless' equipment or the TEP Line or VZW Line caused by the COUNTY as a result of any construction, modification or upgrade work performed by the COUNTY or its employees, contractors or assigns, including but not limited to any work referenced in Exhibit A. If Verizon Wireless conveys ownership and control of those portions of the VZW Line owned by Verizon Wireless to the COUNTY as described in this Article, the COUNTY shall continue to provide power to the TOWN's facilities at the Town Site under the same terms and conditions as Verizon Wireless provides power to the TOWN pursuant to this CONTRACT. If the COUNTY chooses not to assume, ownership and control of those portions of the VZW Line owned by Verizon Wireless or not to provide power to the TOWN's facilities at the Town Site, then the COUNTY shall convey ownership and control of those portions of the VZW Line conveyed to it pursuant to this Article and necessary to supply power to the TOWN's facilities, to the TOWN, in its as -is then- current condition without warranty, pursuant to the same terms as described in the form Bill of Sale attached hereto as Exhibit B. -2- ARTICLE IV — COMPENSATION AND PAYMENT COUNTY and TOWN agree to reimburse Verizon Wireless for their proportionate use of power and any applicable State and City sales taxes. Verizon Wireless shall provide detailed annual invoices which reasonably support the requested payment. Verizon Wireless shall not charge any mark up, but shall invoice COUNTY and TOWN only for their actual power usage as determined by Verizon Wireless' annual reading of COUNTY's and TOWN's respective sub- meters, to be installed by the COUNTY as described in Exhibit A. The invoices to COUNTY will specify the number of kilowatt hours of power consumed by the COUNTY facilities during the . billing period and the invoices to TOWN will specify the number of kilowatt hours of power consumed by the TOWN facilities during the billing period. The invoices to each party will also include the kilowatt hour unit price, State and City sales taxes to be reimbursed, and the total amount of the bill. COUNTY and TOWN shall each pay their respective invoices within 45 days of their receipt thereof. For the period of record retention required under Article XVII, COUNTY and TOWN reserve the right to question any payment made under this Article and to require reimbursement therefore by setoff or otherwise for payments reasonably determined to be improper or contrary to the CONTRACT or law. ARTICLE V - INSURANCE Each party shall obtain and maintain at its own expense, during the entire term of this CONTRACT the following type(s) and amounts of insurance: a) Commercial General Liability in the amount of $2,000,000.00 combined single limit Bodily Injury and Property Damage. To the extent allowable by law, COUNTY shall name Verizon Wireless as an additional insured for all work performed by COUNTY as described in Exhibit A; b) If required by law, workers' compensation coverage including employees' liability coverage. ARTICLE VI — INDEMNIFICATION Each party (as Indemnitor) agrees to indemnify, defend and hold harmless the other parties (as Indemnitee) from and against any and all claims, losses, liability, costs or expenses (including reasonable attorney's fees) (hereinafter collectively referred to as "claims ") arising out of bodily injury of any person (including death) or property damage, but only to the extent that such claims which result in vicarious /derivative liability to the Indemnitee, are caused by the act, omission, negligence, misconduct, or other fault of the Indemnitor, its officers, officials, agents, employees, or volunteers. ARTICLE VII - COMPLIANCE WITH LAWS The parties shall comply with all federal, state, and local laws, rules, regulations, standards and Executive Orders, without limitation to those designated within this CONTRACT. The laws and regulations of the State of Arizona shall govem the rights of the parties, the performance of this CONTRACT, and any disputes hereunder. Any action relating to this CONTRACT shall be brought in a court of the State of Arizona in Pima County. Any changes in the governing laws, rules, and regulations during the terms of this Contract shall apply, but do not require an amendment. ARTICLE VIII - INDEPENDENT CONTRACTOR The status of Verizon Wireless shall be that of an independent contractor. Neither Verizon Wireless, nor Verizon Wireless' officer's agents or employees shall be considered an employee of COUNTY or TOWN or be entitled to receive any employment- related fringe benefits under the Pima County Merit System or the Town of Marana Personnel Policies and Procedures. -3- ARTICLE IX - NON- DISCRIMINATION Verizon Wireless agrees to comply with all provisions and requirements of Arizona Executive Order 2009 - 09 including flow down of all provisions and requirements to any subcontractors Executive Order 2009 -09 supersedes Executive order 99 -4 and amends Executive order 75 -5 and may be viewed and downloaded at the Governor of the State of Arizona's website http: / /www.azgovernor.aov /dms /upload /EO 2009 09.r)df which is hereby incorporated into this contract as if set forth in full herein. During the performance of this contract, Verizon Wireless shall not discriminate against any employee, client or any other individual in any way because of that person's age, race, creed, color, religion, sex, disability or national origin. ARTICLE X AMERICANS WITH DISABILITIES ACT Verizon Wireless shall comply with all applicable provisions of the Americans with Disabilities Act (Public Law 101 - 336, 42 U.S.C. 12101 - 12213) and all applicable federal regulations under the Act, including 28 CFR Parts 35 and 36. ARTICLE XI AUTHORITY TO CONTRACT Verizon Wireless, the COUNTY and the TOWN each warrant that it has the right and power to enter into this CONTRACT. ARTICLE XII - FULL AND COMPLETE PERFORMANCE The failure of any party to insist on one or more instances upon the full and complete performance with any of the terms or conditions of this CONTRACT to be performed on the part of another party, or to take any action permitted as a result thereof, shall not be construed as a waiver or relinquishment of the right to insist upon full and complete performance of the same, or any other covenant or condition, either in the past or in the future. The acceptance by any party of sums less than may be due and owing it at anytime shall not be construed as an accord and satisfaction. ARTICLE Xlll - CANCELLATION FOR CONFLICT OF INTEREST This CONTRACT is subject to cancellation for conflict of interest pursuant to ARS § 38 -511, the pertinent provisions of which are incorporated into this CONTRACT by reference. ARTICLE XIV — TERMINATION COUNTY, TOWN and Verizon Wireless shall each have the right to terminate this CONTRACT upon material breach of the terms and conditions of this CONTRACT, upon no less than ninety (90) days prior written notice. TOWN shall have the right to terminate this CONTRACT as it applies to the TOWN upon no less than ninety (90) days prior written notice in the event that TOWN secures power to the Town Site through alternate means. If TOWN terminates this CONTRACT pursuant to this provision, COUNTY and Verizon Wireless may continue this CONTRACT as it applies to COUNTY and Verizon Wireless under the terms and conditions set forth herein. Upon termination, TOWN shall have no further obligation to Verizon Wireless, other than for payment of power provided prior to termination. -4- ARTICLE XV - NOTICE Any notice required or permitted to be given under this CONTRACT shall be in writing and shall be served by certified mail upon the other parties as follows: COUNTY: Verizon Wireless: County Administrator's Office Verizon Wireless (VAW) LLC, 130 W. Congress, 10`h Floor d /b /a Verizon Wireless Tucson, AZ 85701 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate Site Name: TUC Beacon Hill Notice Also: PCWIN Administration Office 33 N. Stone Avenue, Suite 1810 Tucson, AZ 85701 (520) 243 -7200 TOWN: Town of Marana Attn: Town Manager 11555 W. Civic Center Drive Marana, AZ 85653 Notice Also: Town of Marana Attn: Technology Services Director 11555 W. Civic Center Drive Marana, AZ 85653 COUNTY's invoices shall be sent to the PCWIN Administration Office at the address above. TOWN's invoices shall be sent to the attention of the Technology Services Director at the address above. ARTICLE XVI - REMEDIES Any party may pursue any remedies provided by law for the breach of this CONTRACT. No right or remedy is intended to be exclusive of any other right or remedy and each shall be cumulative and in addition to any other right or remedy existing at law or at equity or by virtue of this CONTRACT. ARTICLE XVII - SEVERABILITY Each provision of this CONTRACT stands alone, and any provision of this CONTRACT found to be prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of this CONTRACT. ARTICLE XVIII -BOOKS AND RECORDS Verizon Wireless shall keep and maintain proper and complete books, records and accounts for the electrical power usage and consumption on the Property (the "Utility Records "), which Utility Records shall be open at all reasonable times for inspection and audit by duly authorized representatives of COUNTY or TOWN upon prior written request and notice by the COUNTY or the TOWN. -5- In addition, Verizon Wireless, shall retain all records relating to this CONTRACT for at least 5 years after its termination or cancellation or, if later, until any related pending proceeding or litigation has been closed'. ARTICLE XVIX ENTIRE AGREEMENT This document constitutes the entire agreement between the parties pertaining to the subject matter hereof, and all prior or contemporaneous agreements and understandings, oral or written, are hereby superseded and merged herein. This CONTRACT may be modified, amended, altered or extended only by a written amendment signed by all parties. IN WITNESS THEREOF, the parties have affixed their signatures to this CONTRACT on the dates written below. PIMA COU VERIZUh1111tIRELESS (VAW) LLC, a body po tIc carp rat$ e,State of a Delaware Limited llabitity company, rdlbta Arizo Verizon; Iess Ch of rvisors Walter . n s, Area Vice Pr sident tw, rk Date ATT . Date Cl rk of Board APPROVED AS Td ; Deputy CountyAttorney JC Print DCA Name' Date TOWN QE MARANA an Arizona ipa c rporation Ed Honea, YAay6r Date Attest: Attest: Jocelyn r nson, vim Clerk Appr as to ormc ank Ca . idy, Town Atto y r j -6- EXHIBIT "N': SCOPE OF WORK The commercial power for Beacon Hill is provided by Verizon Wireless, from a TEP transformer and meter at the base of Beacon Hill. This power currently supports two shelters, Verizon Wireless and Town of Marana. Pima County has a need to add another shelter on Beacon Hill for the PCWIN project which will require commercial power. Through consultations with TEP and a licensed electrician it has been determined that there is enough power capacity being delivered to the transformer on the hill to support the additional electrical load for the new PCWIN shelter and existing Verizon Wireless and Town of Marana sites. In order to accommodate this additional electrical loading, the following tasks must be performed. • On the load side of the transformer on the pole there is the wire drop existing to the riser on the Marana shelter which will need to be changed from the existing size to a parallel 4/0 run. Pima County responsible for all work and associated costs • A new H -frame and riser will need to be installed with a 600 amp section with three disconnects (Verizon Wireless, Marana, PCWIN) and two sub meters. (Marana and PCWIN) Pima County responsible for all work and associated costs • The new feed from the H -Frame will be run to the PCWIN shelter, Verizon Wireless shelter, and the Marana Shelter each having a 200 AMP service. This will be accomplished by installing conduit in the ground to each respective shelter. Pima County responsible for all work and associated costs There will need to be timely and tight coordination between the Contractors performing the work described in this Exhibit, Verizon Wireless, Town of Marana, and Pima County to cut the new service over to the existing shelters with minimal down time, as this is a live and active radio site for all parties. The PCWIN Project Manager will be responsible for this coordination and communication between all parties. Pima County will not commence any work without obtaining all necessary permits from the Town of Marana and prior approval from Verizon Wireless. Pima County and the Town of Marana will each have a sub -meter installed at their shelters with 200 AMP services, which will be read by Verizon Wireless at service start up, and annually thereafter to provide Verizon Wireless with the power usage totals for each service. Verizon Wireless will invoice Pima County and the Town of Marana on separate invoices for the electricity used, based on each annual meter reading. 7 Y EXHIBIT "B., BILL OF SALE This Bill of Sale (the "Bill of Sale ") is made as of the day of , 20_ (the "Effective Date "), by VERIZON WIRELESS (VAW) LLC, a Delaware limited liability company, d /b /a Verizon Wireless ( "Verizon Wireless "), in favor of the Pima County, a body politic and corporate of the State of Arizona ("Grantee"). WHEREAS, pursuant to that certain Utility Sharing Agreement between the Grantee and Verizon Wireless dated , Verizon Wireless has allowed Grantee to utilize a Tucson Electric Power ( "TEP ") transmission line (the "TEP Line ") located upon the property described in Exhibit A attached hereto and incorporated herein by this reference (the "Property'), which connects from a transformer located at the bottom of the hill on the Property (owned by TEP) up along the hill to a Verizon Wireless -owned transformer located at the top of the hill on the Property (the transmission line and the Verizon Wireless transformer shall hereinafter be referred to as the "VZW line "); and WHEREAS, Grantor wishes to transfer the VZW Line to Grantee in accordance with the terms and conditions of this Bill of Sale. For good and valuable consideration received by Grantee, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby: 1. Verizon Wireless hereby sells, assigns, transfers, conveys and delivers to Grantee all of Verizon Wireless' right, title and interest in and to the VZW Line. 2. Verizon Wireless hereby represents and warrants to the best of Verizon Wireless' knowledge as follows: (a) Verizon Wireless owns and has merchantable title to the VZW Line free and clear of all any and all liens, encumbrances and rights of third parties; and (b) The VZW Line complies with all applicable laws, and was constructed substantially in accordance with the plans and specifications approved by Grantee. 3. Except as set forth in the immediately preceding paragraph, the VZW Line being transferred hereunder are transferred "as is" without any representations or warranties of any kind, express or implied, including warranties of merchantability or fitness for a particular purpose. IN WITNESS WHEREOF, Verizon Wireless has executed this Bill of Sale as of the day and year first written above. Verizon Wireless (VAW) LLC, a Delaware limited liability company, d /b /a Verizon Wireless By: Name: Walter L. Jones, Jr. Its: Area Vice President Network Date: 8 Exhibit C Description of the Property Latitude 32 Longitude 110 ° 08 1 42' 1 Elevation 2,460.00 feet of the following described propertyi All that portion of the Southwest one - Quarter of the Northwest one- Quarter of Section 17, Township 12'south, Range" 12 Bast, G. &S.R.B. &M., pima County, Arizona, more particularly described as follows: BEGINNING at a point on the North line of said Southwest One- Quarter from which the Northwest Corner thereof bears South 89 0 49 1 02" West, 664.11 feet distant, THENCE North 89 East along said North line, 184.00 feat; THENCE South, 12044 East, 245.55 feet; THENCE South, 205.00 feett THENCE South, 08444 Must, 131.53 feet; THENCE South, 28 East, 442.94 feet 'THENCE South, 17 0 08 1 37 " East, 174.25 feet; THENCE South, 190.00 feet to the South line of said Southwest One- Quarter THENCE, South, 89 West along said south lines 154.00 feet to a point from which the Southwest corner of said Southwest one-Quarter bears south 89 West, 987.37 feet distant; THENCE North, 32 West, 421.10 feet, THENCE North, 220.00 feet; THENCE North, 12 "59 East, 133.42 feet; SCE North, 08 07' 48 Mast, 212.13 feest t THENCE forth, 02° 51 Fast, 240.25 feet; THENCE North, 08°20 West, 125.23 feet, to the point of beginning. 9