Is VTel married to Norwich or just shacking up?

Last Friday, the Brattleboro Reformer reported that a signed contract  between the Windham County Sheriff and VTel was no more. Not much detail was provided about the break-up, other than VTel had found a different site and had made a $15,000 donation to the Sheriff. The deal was similar to the proposal the Selectboard has under consideration  -- at little cost to the taxpayer, VTel agreed to replace an aging tower next to the Sheriff’s office, with a taller tower that VTel and the Sheriff would share..    

That led me to ask: how legally committed is VTel to Norwich to deliver a tower by Fall 2013.  The answer is: not much. Under the Lease, the company is not required to act with any kind of dispatch. At present VTel may be highly motivated  to build the tower, but it isn’t married to the idea.  

The Lease contains no general timetable.  VTel has TWO YEARS under the Contract to obtain the necessary permits to build the Tower. [§3, page 2.]   Admittedly, the company must use “commercially reasonable efforts”  to obtain the necessary permits.  [§2(g), page 2.]  But that is far from the “all deliberate speed” that Norwich would exercise if it was pursuing permits to assure the safety of first responders and residents.

Worse, section 20 allows VTel to terminate the Lease at any time, if the company “determines that it will be unable to attain optimal use of the Facility within its communications network.” [§20(a), page 9.]  I am not sure what this means but it seems as if the company can end the arrangement if the site is no longer fits the business plan.  That is a huge LOOPHOLE.  The decision is in VTel’s “sole and absolute discretion“.  

[As an aside, I am not even sure VTel is obligated to build a tower.  Once permits are obtained, VTel must pay rent, but we are not charging any.  That is a topic for another day.]

These provisions protect VTel, but not Norwich.  They make more sense to a landowner who is passively collecting rent.  I accept that permitting is something of an unknown.  But if VTel needs two years, perhaps we are better off going it alone.  Also, the loophole noted above gives great pause. 

These contract terms seems hardly the stuff of a public/private partnership or the way to assure that a much needed tower gets built.  There may be “understandings” about a timetable but if not the “definitive agreement”, then they are unenforceable.

I am not a telecommunications lease expert.  To me, the Lease gives far too much wiggle room to VTel to say that the company is committed to build the tower PROMPTLY.  Is VTel married to Norwich or just shacking up?

LINK: 

http://www.reformer.com/ci_22642405/vtel-finds-alternate-newfane-site-cell-tower