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HomeMy WebLinkAboutC08-301Marlin Colorado Cell Site Number. DNVRCO 4514 Cell Site Name: Wolcott Fi:ced Asset Number 10115173 OPTION AND LEASE AGREEMENT THIS OPTION AND LEASE AGREEMENT ("Agreement"), dated as of the latter of the signature dates below (the "Effective Date', is entered into by The County of Eagle, State of Colorado having a mailing address of PO Box 850, 500 Broadway, Eagle CO 81631 (hereinafter referred to as "Landlord") and New Cingulaz Wireless PCS, LLC, a Delaware limited liability company, having a mailing address of 12555 Cingulaz Way, Alpharetta, Georgia 30004 (hereinafter referred to as "Tenant"). BACSGROIJND Landlord owns or controls a radio communications tower, together with all rights and privileges arising in connection therewith, located at the Eagle County Landfill, in the County of Eagle, State of Colorado (collectively, the "Property"}. Tenant desires to use a portion of the radio communications tower (the "Premises") in connection with its federally licensed communications business. Landlord desires to grdllt to Tenant the right to use a portion of the Premises in accordance with this Agreement. The parties agree as follows: 1. OPTION TO LEASE. (a) Landlord grants to Tenant a six month option (the "Option") to lease a certain portion of the Premises including the air space above such radio communications tower as described on attached Exhibit 1, together with reasonable access for Tenant's uses firm the nearest public right-of-way along the Property to the Premises as described on the attached Exhibit 1. The Option may be extended or renewed for an additional six (6) month by written agreement of the Parties, which agreement shall be made an addendum hereto. (b) During the Option period and any extension thereof, and during the term of this Agreement, Tenant and its agents, engineers, surveyors and other representatives will have the right to enter upon the Property to inspect, examine, conduct soil borings, drainage testing, material sampling, radio frequency testing and other geological or engineering tests or studies of the Property (collectively, the "Tests"), to apply for and obtain licenses, permits, approvals, or other relief required of or deemed necessary or appropriate at Tenant's sole discretion for its use of the Premises and include, without limitation, applications for zoning variances, zoning ordinances, amendments, special use permits, and construction permits (collectively, the "Government Approvals"), initiate the ordering and/or scheduling of necessary utilities, and otherwise to do those things on or off the Property that, in the opinion of Tenant, are necessary in Tenant's sole discretion to determine the physical condition of the Property, the environmental history of the Properly, Landlord's title to the Property and the feasibility or suitability of the Property for Tenant's Permitted Use ,all at Tenant's expense. Tenant will not be liable to Landlord or any third party on account of any preexisting defect or condition on or with respect to the Property, whether or not such defect or condition is disclosed by Tenant's inspection. Tenant will restore the Property to its condition as it existed at the commencement of the Option Term (as defined below), reasonable wear and tear and casualty not caused by Tenant excepted. In addition, Tenant shall indemnify, defend and hold Landlord harmless from and against any and all injury, loss, damage or claims arising directly out of Tenant's Tests. (c) In consideration of Landlord granting Tenant the Option, Tenant agrees to pay Landlord the sum of six hundred and Na/I00 Dollars ($600.00) within thirty (30) business days of the Effective Date. The Option will be for an initial tenor of six (6) months commencing on the Effective Date (the "Initial Option Term"). (d) Upon written consent of Landlord, which consent shall not be unreasonably withheld or conditioned, the Option may be sold, assigned or transferred by Tenant to Tenant's parent company or member if Tenant is a limited liability company or any affiliate or subsidiary of, or partner in, Tenant or its parent company or member, or to any third party agreeing to be subject to the terms hereof. From and after the date the Option has s-~am ~m o~ tma t~ been sold, assigned or transferred by Tenant to a third party agreeing to be subject to the terms hereof, Tenant shall immediately be released from any and except for injury, loss, damage or claims arising out of Tenant's activities on the Property, all other liability under this Agreement, including the payment of any rental or other sums due, without any further action. (e) During the Initial Option Term and any extension thereof, Tenant may exercise ,the Option by notifying Landlord in writing. If Tenant exercises the Option then Landlord leases the Premises to the Tenant subject to the tenors and conditions of this Agreement. If Tenant does not exercise the Option during the Initial Option Term or any extension thereof, this Agreement will terminate and the parties will have no further liability to each other. (f) If during the Initial Option Term or any extension thereof, or during the term of this Agreement if the Option is exercised, Landlord decides to subdivide, sell, or change the status of the zoning of the Premises, Property or any of Landlord's contiguous, adjoining or surrounding property (the "Surrounding Property," which includes without limitation, the remainder of the structure) or in the event of foreclosure, Landlord shall immediately notify Tenant in writing. Any sale of the Property shall be subject to Tenant's rights under this Agreement. Landlord agrees that during the Initial Option Term or any extension thereof, or during the Term of this Agreement if the Option is exercised, Landlord shall not initiate or consent to any change in the zoning of the Premises, Property or Surrounding Property or impose or consent to any other restriction that would prevent or limit Tenant from using the Premises for the uses intended by Tenant as hereinafter set forth in this Agreement. 2. PERMITTED USE. During the Term of the Lease, Tenant may use the Premises for the transmission and reception of communications signals and the installation, conshuction, maintenance, operation, repair, replacement and upgrade of its communications fixtures and related equipment, cables, accessories and improvements, which may include a suitable support structure, associated antennas, equipment shelters or cabinets and fencing and any other items pecessary to the successful and secure use of the Premises (collectively, the "Communication Fadlity"), as well as the right to test, survey and review title on the Property, so long as such use does not interfere with Landlord's public safety radio system or landfill facility operations. Tenant further has the right but not the obligation to add, modify and/or replace equipment in order to be in compliance with any cun~eart or future federal, state or local mandated application, including, but not limited to, emergency 911 communication services, at no additional cost to Tenant or Landlord (collectively, the "Permitted Use"). Landlord and Tenant agree that any portion of the Communication Facility that may be conceptually described on Exltibit 1 will not be deemed to limit Tenant's Permitted Use. If Exhibit 1 includes drawings of the initial installation of the Communication Facility, Landlord's execution of this Agreement will signify Landlord's approval of Exhibit 1. For a period of ninety (90) days following the commencement of the Initial Term as described in Section _3_ of this Agreement„ Landlord grants Tenant, its subtenants, licensees and sublicensees, the right to use such portions of Landlord's contiguous, adjoining or Surrounding Property as described on Exhibit 1 as may reasonably be required during construction and installation of the Communications Facility. Upon written approval of Landlord, Tenant may install and operate transmission cables from the equipment shelter or cabinet to the antennas, electric lines from the main feed to the equipment shelter or cabinet and communication lines from the main entry point to the equipment shelter or cabinet, and to make Property improvements, alterations, upgrades or additions appropriate for Tenant's use ("Tenant Changes"). Tenant agrees to comply with all applicable governmental laws, rules, statutes and regulations, relating to its use of the Communication Facility on the Property. Upon written approval of Landlord, Tenant may modify, supplement, replace, upgrade, expand the equipment, increase the number of antennas or relocate the Communication Facility within the Premises during the term of this Agreement. Tenant will be allowed to make such alterations to the Premises in order to accomplish Tenant's Changes or to insure that Tenant's Communication Facility complies with all applicable federal, state or local laws, rules or regulations. In the event Tenant desires to modify or upgrade the Communication Facility, and Tenant requires an additional portion of the Property (the "Additional Premises' for such modification or upgrade, Landlord may agree in writing to lease to Tenant the Additional Premises, upon the same terms and conditions set forth herein, except that the Rent shall increase, in conjunction with the lease of the Additional Premises by a reasonable amount consistent with rental rates then charged for 810-07 2007 Option lead [saes comparable portions of real property being in the same area. In the event Landlord agrees to lease to Tenant the Additional Premises, Landlord will take such actions and enter into and deliver to Tenant such documents as Tenant reasonably requests in order to effect and memorialize the lease of the Additional Premises to Tenant. 3. TERM. (a) Initial Term. The initial lease term will be five (5) years ("Initial Terra"), commencing on the effective date of written notification by Tenant to Landlord of Tenant's exercise of the Option (the "Term Commencement Date'. The Initial Term will terminate on the fifth (5'~) annual anniversary of the Term Commencement Date. (b) Extension Term. This Agreement will automatically renew for four (4) additional five (5) year term(s) (each five (5) year term shall be defined as the "Extension Term"), upon the same terms and conditions unless the Tenant notifies the Landlord in writing of Tenant's intention not to renew this Agreement at least sixty (60) days prior to the expiration of the existing Term. (c) Holdover Term. If, at least sixty (60) days prior to the end of the fourth (4'") extended term, either Landlord or Tenant has not even the other written notice of its desire that the term of this Agreement end at the expiration of the fourth (4`~ extended term, then upon the expiration of the fourth (4'~) extended term this Agreement shall continue in force upon the same covenants, tenors and conditions for a further term of one (1) year, and for annual terms thereafter until terminated by either party by giving to the other written notice of its intention to so terminate at least six (6) months prior to the end of any such annual term. Monthly rental during such annual terms shall be equal to the rent paid for the last month of the fourth (4`~ extended team. If Tenant remains in possession of the Premises after the termination of this Agreement then Tenant will be deemed to be occupying the Premises on a month to month basis (the "Holdover Term"), subject to the terms and conditions of this Agreement. (d) The Initial Term, the Extension Term and the Holdover Term are collectively referred to as the Term ("Term"). 4. RENT. (a) Commencing on the first day after the Term Commencement Date, Tenant will pay the Landlord the prorated portion of the montlily rental payment of six hundred and No/100 Dollars ($600.00) ("Rent"), at the address set forth above. Thereafter, monthly rental payments shall be paid by Tenant on or before the fifth (5`~ day of each calendar month. In partial months occurring after the Term Commencement Date ,Rent will be prorated (b) Commencing on the first (1st) day of the Extension Term, and annually thereafter, the monthly rent (using the monthly rent payable during the preceding year as the base rate) shall be increased in an amount proportionate to the increase, if any, in the then most current U.S. Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-U), U.S. City Average, All Items (published by the U.S. Department of Labor, Bureau of Labor Statistics) over said CPI-U for the same month of the preceding year. Landlord's computation of such adjustment shall be conclusive unless Tenant shall notify Landlord of an error therein within thirty (30) days after notice of such increase is given. If the above described index shall cease to be released or available, then another similar index generally recognized as authoritative may be substituted by the Landlord with the agreement of Tenant. (c) All charges payable under this Agreement such as utilities and taxes shall be billed by Landlord within one (1) year from the end of the calendar year in which the charges were incurred; any charges beyond such period shall not be billed by Landlord, and shall not be payable by Tenant. The foregoing shall not apply to monthly rent which is due and payable without a requirement that it be billed by Landlord. The provisions of the foregoing sentence shall survive the termination or expiration of this Agreement. 5. APPROVALS. (a) Landlord agrees that Tenant's ability to use the Premises is contingent upon the suitability of the Premises for Tenant's Permitted 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 Government Approvals 3 8-10-07 tom optbu tam [.aso for Tenant's Permitted Use under this Agreement at Tenant's sole cost and expense and agrees to reasonably provide Tenant with any information necessary for Tenant's applications and to obtain and maintain the Government Approvals. (b) Tenant has the right to obtain a title report or commitment for a leasehold title policy from a title insurance company of its choice and to have the Property surveyed by a surveyor of Tenant's choice. In the event Tenant determines, in its sole discretion, due to the title report results or survey results, that the condition of the Premises is unsatisfactory, Tenant will have the right to terminate this Agreement upon notice to Landlord. In the event of such termination, Tenant shall restore the Premises to its condition at the commencement of the Agreement, reasonable wear and tear and loss by casualty or other causes beyond Tenant's control excepted (c) Tenant may also perform and obtain, at Tenant's sole cost and expense, soil borings, percolation tests, engineering procedures, environmental investigation or other tests or reports on, over, and under the Property, necessary to determine if the Tenant's use of the Premises will be compatible with Tenant's engineering specifications, system, design, operations or Government Approvals. 6. TERMINATION. This Agreement may be terminated, without penalty or further liability, as follows: (a) by either party on thirty (30) days prior written notice, if the other party remains in default under Paragraph 15 of this Agreement after the applicable cure periods; (b) by Tenant upon written notice to Landlord, if Tenant is unable to obtain, or maintain, any required approval(s) or the issuance of a license or permit by any agency, board, court or other governmental authority necessary for the construction or operation of the Communication Facility as now or hereafter intended by Tenant; or if Tenant determines in its sole discretion that the cost of obtaining or retaining the same is commercially unreasonable; (c) by Tenant upon written notice to Landlord for any reason or no reason, at any time prior to commencement of construction by Tenant; or (d) by Tenant upon sixty (60) days prior written notice to Landlord for any reason, so long as Tenant pays Landlord a termination fee equal to three (3) months Rent, at the then current rate, provided, however, that no such termination fee will be payable on account of the termination of this Agreement by Tenant under any one or more of Paragraphs 5(b), 6(a), 6(b) , 6(c), 8, 11(d), 18, 19 or 23(j) of this Agreement. (e) by Landlord upon thirty (30) days prior written notice, if Tenant's use of said property for the purposes stated herein are no longer allowable under the teams of the County's land patent agreement with the United States Bureau of Land Management, in which event, Landlord shall have no further liability or obligation with respect to the terms of this Lease. 7. INSURANCE. Tenant will carry during the Term, at its own cost and expense, the following insurance: (i) "All Risk" property insurance for its property's replacement cost; (ii) commercial general liability insurance with a minimum limit of liability of Two Million Five Hundred Thousand Dollars $2,5,000 combined single limit for bodily injury or death/property damage arising out of any one occurrence; and (iii) Workers' Compensation Insurance as required by law. The coverage afforded by Tenant's commercial general liability insurance shall apply to Landlord as an additional insured, but only with respect to Landlord's liability arising out of its interest in the Property. 8. INTERFERENCE. (a) Where there are existing radio frequency user(s) on the Property, the Landlord will provide Tenant with a list of all existing radio frequency user(s) on the Property to allow Tenant to evaluate the potential for interference. Tenant warrants that its use of the Premises will not interfere with existing radio frequency user(s) on the Property so disclosed by Landlord, as long as the existing radio frequency user(s) operate and continue to operate within their respective frequencies and in accordance with all applicable laws and regulations. If at any time during the Term of this Lease, Tenant's operation interferes with Landlord's public safety radio system, Tenant must immediately cause such interference to cease after receipt of notice by Landlord. In the 4 8-10.07 aom qpa~. [.am r.... event that any such interference does not cease within the aforementioned cure period, then the parties acknowledge that Landlord will suffer irreparable injury, and therefore, Landlord will have the right to enjoin such interference and terminate this Agreement upon notice to Tenant. Where there are existing radio frequency user(s) on the Property, the Landlord will provide Tenant with a list of all existing radio frequency users} on the Property to allow Tenant to evaluate the potential for interference. Tenant warrants that its use of the Premises will not interfere with existing radio frequency user(s) on the Property so disclosed by Landlord, as long as the existing radio frequency user(s) operate and continue to operate within their respective frequencies and in accordance with all applicable laws and regulations. (b) Landlord will not grant, after the date of this Agreement, a lease, license or any other right to any third party for the use of the Property, if such use may in any way adversely affect or interfere with the Communication Facility, the operations of Tenant or the rights of Tenant under this Agreement. Landlord will notify Tenant in writing prior to granting any third party the right to install and operate communications equipment on the Property. (c) Tenant acknowledges that a portion of the Property is being used by the County as a landfill and recycling facility and that such use will continue throughout the term of this Agreement. Landlord wilt not use, nor will Landlord permit its employees, tenants, licensees, invitees or agents to use, any portion of the Property in any way which otherwise interferes with the Communication Facility, the operations of Tenant or the rights of Tenant under this Agreement, except use of the Property as a landfill and recycling center will always be Landlord's right. Landlord will cause such interference to cease within twenty-four (24) hours after receipt of notice of interference from Tenant. In the event any such interference does not cease within the aforementioned cure period then the parties acknowledge that Tenant will suffer irreparable injury, and therefore, Tenant will have the right ,for Landlord's breach of this Agreement, to elect to enjoin such interference or to terminate this Agreement upon notice to Landlord. 9. IiNDEbINIFICATION. (a) Tenant agrees 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 Tenant's use of the Premises or Access to the Property or Tenant's installation, use, maintenance, repair or removal of the Communication Facility or Tenant's breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Landlord, its employees, agents or independent contractors. (b) To the extent allowable by law, Landlord agrees to indemnify, defend and hold Tenant 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 actions or failure to act of Landlord or its employees or agents, or Landlord's breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Tenant. its employees, agents or independent contractors. (c) 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. 10. WARRANTIES. (a) Tenant and Landlord each acknowledge and represent that it is duly organized, validly existing and in good standing and has the right, power and authority to enter into this Agreement and bind itself hereto through the party set forth as signatory for the party below. (b) Landlord represents and warrants that: (i) Landlord owns the Property by virtue of a land patent conveyed by the Bureau of Land Management ("BL112"); (ii) the Property is not encumbered by any liens, restrictions, mortgages, covenants, conditions, easements, leases, or any other agreements of record or not of record, which would adversely affect Tenant's Permitted Use and enjoyment of the Premises under this Agreement; (iii) as long as Tenant is not in default then Landlord grants to Tenant actual, quiet and peaceful use, enjoyment and possession of the Premises; (iv) Landlord's execution and performance of this Agreement will not violate any laws, ordinances, covenants or the provisions of any mortgage, lease or other agreement binding on slam nom o~ ~a ~ the Landlord; and (v) if the Property is or becomes encumbered by a deed to secure a debt, mortgage or other security interest, Landlord will provide promptly to Tenant a mutually agreeable Subordination, Non-Disturbance and Attornment Agreement. 11. ENVIRONMENTAL. (a) Landlord represents and warrants that the Property is free of hazardous substances as of the date of this Agreement, and, to the best of Landlord's knowledge, the Property has never been subject to any contamination or hazardous conditions resulting in any environmental investigation, inquiry or remediation. Tenant acknowledges that a portion of the Property is being used by the County as a landfill and recycling facility and that such use will continue throughout the term of this Agreement. Landlord and Tenant agree that each will be responsible for compliance with any and all environmental and industrial hygiene laws, including 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 condition or other matters as may now or at any time hereafter be in effect, that are now or were related to that party's possession, use of ar activity conducted in or on the Property. (b} Landlord ,to the extent allowable by law, and Tenant agree to hold harmless and indemnify the other from, and to assume all duties, responsibilities and liabilities at the sole cost and expense of the indemnifying party 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) the indemnifying party's failure to comply with any environmental or industrial hygiene law, including without 1unitation 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 and activities conducted by the party thereon, unless the environmental conditions are caused by the other party. (c) The indemnifications of this Paragraph 11 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 11 will survive the expiration or termination of this Agreement. (d) In the event 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 to terminate the Agreement upon notice to Landlord. 12. ACCIESS• Access to the Premises for routine maintenance and non-emergency repairs will be alkwued during normal Landfill operating hours. Maintenance personnel shall deck in and out at the Landfill office. Access for after hours emergency repairs must be arranged though the Vail Public Safety Communications Center by calling (970) 479-2201. This access will require an escort at ATBTs expense Tenant acknowledges that the Premises is located behind a locked gate and that the roadway to the Premises beyond the locked gate is a 4X4 trail that is not regulazly plowed or maintained Therefore, Tenant, its employees, agents and subcontractors may need to use snow machines to access the Premises during winter months. Snow machines will not be provided by Landlord and Tenant is solely responsible for acquiring the necessary equipment to access the Premises. 13. REMOVAL/RESTORATION. All portions of the Communication Facility bought onto the Property by Tenant will be and remain Tenant's personal property and, at Tenant's option, may be removed by Tenant at any time during the Term. Landlord covenants and agrees that no part of the Communication Facility other thaw the underground improvements or underground utitlities constructed, erected or placed on the Premises by Tenant will become, or be considered as being affixed to or a part of, the Property, it being the specific intention of the Landlord that all improvements of every kind and nature constructed, erected or placed by Tenant on the Premises will be and remain the property of the Tenant and may be removed by Tenant at any time during the Term. 6 s-lam ~ ~~ Within one hundred twenty (120) days of the termination of this Agreement, Tenant will remove all of Tenant's above-ground improvements and Tenant will, to the extent reasonable, restore the Premises to its condition at the commencement of the Agreement, reasonable wear and tear and loss by casualty or other causes beyond Tenant's control excepted Notwithstanding the foregoing, Tenant will not be responsible for tbe replacement of any trees, shrubs or other vegetation, nor will Tenant be required to remove from the Premises or the Property any stnmtural stcel or any foundations or underground utilities. 14. MAINTIENANCE/UTILITYES. (a) Tenant will keep and maintain the Premises in good condition, reasonable wear and tear and damage from the elements excepted. (b) In the event Tenant requires a telephone service line, Tenant will be responsible for securing said telephone service line at its own_expense. Tenant shall also be responsible for securing its own metered electrical supply at its own expense. Tenant will be responsible for paying on a monthly or quarterly basis all utilities charges for electricity, telephone service or any other utility used or consumed by Tenant on the Premises. Landlord acknowledges that Tenant provides a communication service which requires electrical power to operate and must operate twenty-four (24) hour per day, seven (7) day per week . If the interruption is for an extended period of time, in Tenant's reasonable determination, the Landlord agrees to allow Tenant the right to bring in a temporary source of power for the duration of the interruption. Landlord will fully cooperate with any utility company requesting access to the Property in order for the utility company to provide service to the Tenant. Landlord will not be responsible for interference with, interruption of or failure, beyond the reasonable control of Landlord, of such services to be furnished or supplied by Landlord. 15. DEFAULT AND RIGHT TO CURE. (a) The following will be deemed a default by Tenant and a breach of this Agreement: (i) non- payment of Rent if such Rent remains unpaid for more than thirty (30) days after receipt of written notice from Landlord of such failure to pay; (ii) Tenant's failure to cure an interference problem per section 8(a) or (iii) Tenant's failure to perform any other term or condition under this Agreement within forty-five (45) days after receipt of written notice from Landlord specifying the failure. Delay in curing a default will be excused if due to causes beyond the reasonable control of Tenant. If Tenant remains in default beyond any applicable cure period, Landlord will have the right to exercise any and all rights and remedies available to it under law and equity including the right to cure Tenant's default and to bill Tenant for any cost related to the cure. (b) The following will be deemed a default by Landlord and a breach of this Agreement: (i) failure to provide access to the Premises or to cure an interference problem within twenty-four (24) hours after receipt of written notice of such default; or (ii) Landlord's failure to perform any tenor, condition or breach of any warranty or covenant under this Agreement within forty-five (45) days after receipt of written notice from Tenant specifying the failure. No such failure, however, will be deemed to exist if Landlord has commenced to cure the default within such period and provided such efforts are prosecuted to completion with reasonable diligence. Delay in curing a default will be excused if due to causes beyond the reasonable control of Landlord. If Landlord remains in default beyond any applicable cure period, Tenant will have the right to exercise any and all rights available to it under law and equity. 16. ASSIGNMENT/SUBLF.ASE. Tenant will have the right to assign, sell or transfer its interest under this Agreement without the approval or consent of Landlord, to Tenant's parent or member company or any affiliate or subsidiary of, or partner in, Tenant or its parent or member company or to any entity which acquires all or substantially all of the Tenant's assets in the market defined by the Federal Communications Commission in which the Property is located by reason of a merger, acquisition, or other business reorganization. Upon notification to Landlord of such assignment, transfer or sale, Tenant will be relieved of all future performance, liabilities and obligations under this Agreement. Tenant shall not have the right to sublease the Premises, in whole or in part, without Landlord's consent. Tenant may not otherwise assign this Agreement without Landlord's consent, Landlord's consent not to be unreasonably withheld, conditioned or delayed 7 8-10-07 2007 option [.am tore 17. OTI IES. All notices, requests, demands and communications hereunder will be given by fast class certified or registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to be effective when properly sent and received, refused or returned undelivered. Notices will be addressed to the parties as follows: NOTICE SECTION: (FOR CERTIFED MAII.) If to Tenant: New Cingular Wireless 1'CS, LLC Attn: AT&T Network Real Estate Administration Re: Cell Site #: DNVRC04514 ;Cell Site Name: Wolcott Fixed Asset No: 10115173 P.O. Box 1630 Alpharetta, GA 30009 (FOR OVERNIGHT COURIER) ff to Tenant: New Cingular Wireless I'CS, LLC Attn: AT&T Network Real Estate Administration Re: Cell Site #: DNVRC04514 ;Cell Site Name: Wolcott Fixed Asset No: 10115173 12555 Cingular Way Alpharetta, GA 30004 With a Copy to: (FOR CERTIFED MAIL) New Cingular Wireless PCS, LLC Attn.: Legal Department Re: Cell Site #: DNVRC04514 ;Cell Site Name: Wolcott Fixed Asset No: 10115173 PO Box 97061 Redmond, WA 98073-9761 (FOR OVERNIGHT COURIER) New Cingular Wireless PCS, LLC Attn.: Legal Department Re: Cell Site #: DNVRC04514 ;Cell Site Name: Wolcott Fixed Asset No: 10115173 16331 NE 72nd Way Redmond, WA 98052 If to Landlord: Eagle County Manager PO BOX 850, 500 Broadway Eagle, CO 8163 I With a copy to:: Eagle County Attorney PO BOX 850, 500 Broadway Eagle, CO 81631 s-to-a7 ~ ~~~ Either party hereto may change the place for the giving of notice to it by thirty (30) days prior written notice to the other as provided herein. (b) In the event of a change in ownership, transfer or sale of the Property, within ten (10) days of such transfer, Landlord will send the below documents (in section 17(bxi) to Tenant. In the event Tenant does not receive such appropriate documents, Tenant shall not be responsible for any failure to pay the current landlord (i) a. Old deed to Property b. New deed to Property c. Bill of Sale or Transfer d. Copy of current Tax Bill e. New W-9 f. New Payment Direction Form g. Full contact information for new Landlord including all phone numbers 1& CONDEMNATION. In the event Landlord receives notification of any condemnation proceedings affecting the Property, Landlord will pmvide notice of the proceeding to Tenant within forty-eight (48) hours. ]f 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 proceeds, which for Tenant will include, where applicable, the value of its Communication Facility, 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 prorate basis. 19. CASUALTY. Landlord will provide notice to Tenant of any casualty affecting the Property within forty- eight (48) hours of Landlord's discovery of the casualty. If any part of the Communication Facility or Property is damaged by fine or other casualty so as to render the Premises unsuitable, in Tenant's sole determination, then Tenant may terminate this Agreement by providing written notice to the Landlord, which termination will be effective as of the date of such damage or destruction. Upon such termination, Tenant will be entitled to collect all insurance proceeds payable to Tenant on account thereof and to be reimbursed for any prepaid Rent on a pmrata basis. If notice of termination is given, or if Landlord or Tenant undertake to rebuild the Communications Facility, Landlord aggress to use its reasonable efforts to permit Tenant to place temporary transmission and reception facilities on the Property, so long as such facilities do not interfere with the County's landfill and recycling operations or County's public safety radio system, until such time as Tenant is able to activate a replacement transmission facility at another location or the reconstruction of the Communication Facility is completed 20. WAIVER OF LANDLORD'S LIENS. Landlord waives any and all lien rights it may have, statutory or otherwise, concerning the Communication Facility or any portion thereof. The Communication Facility shall be deemed personal property for purposes of this Agreement, regardless of whether any portion is deemed real or personal property under applicable law, and Landlord consents to Tenant's right to remove all or any portion of the Communication Facility from time to time in Tenant's sole discretion and without Landlord's consent. 21. AIi~.S. Landlord is a governmental entity and is exempt from all ad valorem taxes levied upon the lands, improvements and other property of Landlord. Tenant shall be responsible for all taxes levied upon Tenant's possessory interest im the Premises and leasehold improvements (including Tenant's equipment building and tower) on the Premises. Tenant shall have the right to contest, in good faith, the validity or the amount of any tax or assessment levied against the Premises by such appellate or other proceedings as may be appropriate in the jurisdiction, and may defer payment of such obligations, pay same under protest, or take such other steps as Tenant may deem appropriate. This right shall include the ability to institute any legal, regulatory or informal 9 5-10-07 ~W opron Lmd Lease action in the name of Landlord, Tenant, or both, with respect to the valuation of the Premises. The expense of any such proceedings shall be borne by Tenant and any refunds or rebates secured as a result of Tenant's action shall belong to Tenant. 22. SALE OF PROPERTY/RIGHT OF FIRST REFUSAL. (a) If Landlord, at any time during the Term of this Agreement, decides to sell, subdivide or rezone any of the Premises, all or any part of the Premises or Surrounding Property, to a purchaser other than Tenant, Landlord shall promptly notify Tenant in writing, and such sale, subdivision or rezoning shall be subject to this Agreement and Tenant's rights hereunder. Landlord agrees not to sell, lease or use any areas of the Property or Surrounding Property for the installation, operation or maintenance of other wireless communications facilities if such installation, operation or maintenance would interfere with Tenant's Permitted Use or communications equipment as determined by radio propagation tests performed by Tenant in its sole discretion, any such testing to be at the expense of Landlord's prospective purchaser, and not Tenant. Tf the radio frequency propagation tests demonstrate levels of interference unacceptable to Tenant, Landlord shall be prohibited from selling, leasing or using any areas of the Premises or the Surrounding Property for purposes of any installation, operation or maintenance of any other wireless communications facility or equipment. Landlord shall not be prohibited from the selling, leasing or use of any of the Property or the Surrounding Property for non-wireless communication use. In the event the Property is transferred, the new landlord shall have a duty at the time of such transfer to provide Tenant with a completed IRS Form W-9, or its equivalent, and other related paper work to effect a transfer in Rent to the new landlord. The provisions of this Paragraph 22 shall in no way limit or impair the obligations of Landlord under Paragraph 8 above. (b) If at any time after the Effective Date, Landlord receives a bona fide written offer from a third party seeking an assignment of the rental stream associated with this Agreement ("Parclra4e Offer"), Landlord shall immediately furnish Tenant with a copy of the Purchase Offer, together with a representation that the Purchase Offer is valid, genuine and true in all respects. Tenant shall have the right within thirty (30) days after it receives such copy and representation to match the Purchase Offer and agree in writing to match •the terms of the Purchase Offer. Such writing shall be in the form of a contract substantially similar to the Purchase Offer. if Tenant chooses not to exercise this right of first refusal or fails to provide written notice to Landlord within the thirty (30) day period, Landlord may assign the rents.! stream pursuant to the Purchase Offer, subject to the terms of this Agreement (including without limitation the terms of this Subparagraph 22(B), to the person or entity that made the Purchase Offer provided that (i) the assignment is on the same terms contained in the Purchase Offer and (ii) the assignment occurs within ninety (90) days of Tenant's receipt of a copy of the Purchase Offer. If such third party modifies the Purchase Offer or the assignment does not occur within such ninety (90) day period, Landlord shall re-offer to Tenant, pursuant to the procedure set forth in this subparagraph 22(b), the assignment on the terms set forth in the Purchase Offer, as amended. The right of first refusal hereunder shall (i) survive any transfer of all or any part of the Property or assignment of all or any part of the Agreement; (ii) bind and inure to the benefit of, Landlord and Tenant and their respective heirs, successors and assigns; (iii) run with the land; and (iv) terminate upon the expiration or earlier termination of this Agreement. 23. TOWER MASKING. In the event the Eagle County Board of County Commissioners requires some form of masking of the tower located on the Premises, the cost to provide the required masking shall be shared by Landlord and Tenant equally. 24. MISCELLANEOUS. (a) Amendment/Waiver. This Agreement cannot be amended, modified or revised unless done in writing and signed by an authorized agent of the Landlord and an authorized agent of the Tenant. No provision may be waived except in a writing signed by both parties. (b) Memoraundum/Short Form Lease. Either party will, at any time upon fifteen (15) business days prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum or 10 8-10-07 nom optioatJmtaee Short Form of Lease. Either party may record this Memorandum or Short Form of Lease at any time, in its absolute discretion. (c) Bind and Benefit. The terms and conditions contained in this Agreement will run with the Property and bind and inure to the benefit of the parties, their respective heirs, executors, administrators, successors and assigns. (d) Entire Agreement. This Agreement and the exhibits attached hereto, all being a part hereof, constitute the entire agreement of the parties hereto and will supersede all prior offers, negotiations and agreements with respect to the subject matter of this Agreement. (e) Governing I.aw. This Agreement will be governed by the laws of Colorado, without regard to conflicts of law. Venue in any action to enforce or interpret or arising out of the terms of this agreement shall be in the District Court in the Sa` District for the State of Colorado. (f) Interpretation. Unless otherwise specified, the following rules of construction and interpretation apply: (i) captions are for convenience and reference only and in no way define or limit the construction of the terms and conditions hereof; (ii) use of the term "including" will be interpreted to mean "including but not limited to"; (iii) whenever a party's consent is required under this Agreement, except as otherwise stated in the Agreement or as same may be duplicative, such consent will not be unreasonably withheld, conditioned or delayed; (iv) exhibits are an integral part of the Agreement and are incorporated by reference into this Agreement; (v) use of the terms "termination" or "expiration" are interchangeable; (vi) reference to a default will take into consideration any applicable notice, grace and cure periodsiand (vii) to the extent there is any issue with respect to any alleged, perceived or actual ambiguity in this Agreement, the ambiguity shall not be resolved on the basis of who drafted the Agreement. (g) W-9. Landlord agrees to provide Tenant with a completed IRS Form W-9, or its equivalent, upon execution of this Agreement and at such other times as may be reasonably requested by Tenant. (h) No Electronic Signature/No Option. The submission of this Agreement to any party for examination or consideration does not constitute an offer, reservation of or option for the Premises based on the terms set forth herein. This Agreement will become effective as a binding Agreement only upon the handwritten legal execution, acknowledgment and delivery hereof by Landlord and Tenant. (i) Severabllity_ If any term or condition of this Agreement is found unenforceable, the remaining terms and conditions will remain binding upon the parties as though said unenforceable provision were not contained herein. However, if the invalid, illegal or unenforceable provision materially affects this Agreement then the Agreement may be terminated by either party on ten (10) business days prior written notice to the other party hereto. (j) Counterparts This Agreement may be executed in two (2) or more counterparts, all of which shall be considered on and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties. It being understood that all parties need not sign the same counterpart. [SIGNATURES APPEAR ON THE NEXT PAGE] 11 810-07 ~m opwna~mua~e lIN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the last date written below. nLtfl\LLViWn Eagle County By:~ Print Its: J Date: "TENANT" New Cingulaz Wireless PCS, LLC, a Delaware limited liability company By: AT&T Mobility C ration Its: Man er By: Prin :Dennis eal Real Estate & nstruction na er Date: !o 01'' l2 810-07 xoat ~ seas MEMORANDUM OF LEASE Prepared bv: Mike Shadow Contractor For General Dynamics 56~ S. Quebec St., Suite 109-A Greenwood Village, CO 80111 Return to• Re: Cell Site #DNVR 4514; Cell Site Name: Wolcott Fixed Asset # rorrsr~s Eagle County, Colorado MEMORANDUM OF LEASE This Memorandum of Lease is entered into on this ~ day of C~L~-a~e~ , 200 by and Eagle County, a , having a mailing address of 1?O Box 850, 500 Broadway, Eagle CO 81631 (hereinafter referred to as "Landlord") and New Cingular Wireless 1?CS, LLC, a Delaware limited liability company, having a mailing address of 12555 Cingular Way, Alpharetta, Georgia 30004 (hereinafter referred to as "Tenant"). 1. Landlord and Tenant entered into a certain Option and Lease Agreement ("Agreement") on the day of ~-~Or~2r~. . 200, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing are set forth in the Agreement. 2. The initial lease term will be five (5) years ("Initial Term's commencing on the effective date of written notification by Tenant to Landlord of Tenant's exercise of the Option, with four (4) successive five (5) year options to renew. 3. The portion of the land being leased to Tenant (the "Premises' is described in Exhibit 1 attached hereto. 4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions or provisions of the Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between the provisions of this Memorandum of Lease and the provisions of the Agreement, the provisions of the Agreement 8-10-07 shall control. The Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assigns, subject to the provisions of the Agreement. IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first above written. "LANDLORD" Eagle County B-= / ~~ Print Name: Q '~ ~' Date: ~~ • l~k •O`(~ `°~ENANT" New Cingular Wireless 1?CS, I.LC, a Delaware limited lia~b°ility company By: ATBiT~~~~~bilily \rpO on Its: Mana ~ ~ _ \ .., . Print Name: Dennis Neal Date: Gam'/ZI ~ ~-10-®? DESCRIPTION OF PREMISES Page _ of _ to the Memorandum of Lease dated _, 200_, by and between Eagle County, a Colorado Municipal corporation, as Landlord, and New Cingular Wireless PCS, LLC, a Delaware limited liability company, as Tenant. The Premises are described and/or depicted as follows: 815 Ute Creek, Wolcott, CO Property located in Eagle, CO Sixth Principal Meridian, Colorado, T. 4.S., R 83 W., Sec. 10, SE~/a, E'-4 SE'/a SWy, Err4 NE~/a, ES~s SWl/a NEB/a EXCEPTING AND RESERVING TO THE UNITED STATES: 1. A right-of-way thereon for ditches and canals constructed by the authority of the United States under the Act of August 30, 1890 (43 U.S.C. 945), and SUBJECT TO: 1. Those right for electric transmission line purposes as have been granted to Holy Cross Energy, its successors and assigns, by right-of-way Colorado 31358 under the Act of October 21, 1976 (43 U.S.C. 1761) across the SEy NE'/ of Section 10, T. 4S., R. 83 W., Sixth Principal Meridian, Colorado. 2. Those rights for telephone line purposes as have been granted to CenturyTel of Eagle, Inc., its successors and assigns, by rights-of-way Colorado 35138 and Colorado 50820 under the Act of October 21, 1976 (43 U.S.C. 1761) across the SWy NEy and E'/s NWy SE'/a of Section 10, the SWl/a NWya, W~h SEy NWya, T. 4 S., R. 83 W., Sixth Principal Meridian, Colorado. 3. Those rights for access road purposes as have been granted to Upper Eagle Valley Consolidated Sanitation District and its assigns, by right-of-way Colorado 40272 under the Act of October 21, 1976 (43 U.S.C. 1761) across the SE'/a NE'/ of Section 10 and SWy NWS4 of Section 11, T. 4 S., R 83 W., Sixth Principal Meridian, Colorado. 4. Those rights for access road purposes as have been granted to Chris Jouflas, his successors and assigns, by right-of--way Colorado 57551 under the Act of October 21, .1976 (43 U.S.C. 1761) across the SEi/a NEB/ of Section 10, SWy NWy, Wei SE'/a NWl/a, T. 4 S., R. 83 W., Sixth Principal Meridian, Colorado. AND BEING the same property conveyed to The County of Eagle, State of Colorado from The United States of America by Patent dated December 18, 2002 and recorded December 31, 2002 in Instrument No. 818917. Tax Parcel No. 194110400002 8-10-07 EDIT 1 DESCRIPTION OF PREMISES Page 2 of 2 ~,,~~ I I 8-fl0-Of ~•R~ / ..urea wvy~ $~ T ~ •. ~...,.°.. .. .... , r PAYMENT DIRECTION FORM NEW ® CHANGE CINGULAR SITE NAME: Wolcott SITE ADDRESS: 815 Ute Creek Road, Wolcott, CO LESSOR NAME:* The County Of Eagle PAYEE NAME:***(PAYEE NAME MUST MATCH THE NAME ON THE W-9)*** Ea le Count Government PAYMENT ADDRESS: Eagle County PO Box 850, 500 Broadway Ea le Co 81631 LESSOR PHONE /FAX NUMBER: 970-328-8600 LESSOR/PAYEE VENDOR ID NUMBER: (if existing vendor) PREVIOUS MANAGEMENT COMPANY: (if applicable) LESSOR/PAYEE PAYMENT SHARE:*** 100°f° I .eccnr Name chn~JA i,P A~~~ri., .. .~a ... 1 ------ - ~^•••- ~••~~~ u..uy w ~~awu ~~~ L.C6JG/LIl;e11JC ** For cases of different payee name and management company handling payments and taxes see acknowledgement below *** Percentage of rent payment to be paid to Lessor/Payee named herein I hereby authorize ATT Mobility LLC and/or its subsidiaries to make all rent payments and other payments relating to the site named above to the Lessor/Payee and Payment Address listed above (subject to the Lessor/Payee Payment Share listed above). I further acknowledge and agree that the Lessor Payment Share listed above is correct. i':~~'ntetit rctaaittccl tct PtrSr>ns trthcr tlr;<~n iancllorci. I3y c:l~ccl:in=~ 111i~ h~~Y ~rl~c! irtiii<zlin~> 1 clc~ acl.n~7~~lccl~c 1 ha4c: ct~ntractcd ~~itll a Irtan<xt;ctnctlt currtpany Iltai will lral~dl~ 117 l~ztyn~c;nt.; a~tcl I~l`e irnplic~tli<}Ils e)I`thii lc:atit: agreement ~~ G_ This authorization shall remain in effect until I have cancelled it in writing in as much time as to afford you a reaso tt t pct upon it. LESSOR AUTHORIZED SIGNA URE TITLE DATE ( PRINT LEGIBLY ) LESSOR AUTHORIZED SIGNATURE ( PRINT LEGIBLY ) Retum To• Cingular Wireless 6100 Atlantic Blvd Norcross. GA 30071 Fax.866-284-7345 Lease Administration TITLE DATE W'oicott PArivyEN I UfREC"fION FORMI PRIVATE/PROPRIET.aR1' Page 1 Contains private and/or proprietary information. May not be used or disclosed outside the ATT Companies except pursuant to a written agreement.