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HomeMy WebLinkAboutC14-382 AT&T New Cingular Wireless First Amendment Market: Ruth Cell Site Name: Wolcott Fixed Asset Number: 10130171 FIRST AMENDMENT TO OPTION AND LEASE AGREEMENT r r- •This First Amendment to Option and Lease Agreement("Amendment") is dated this "'-- day o - - :: , 2014, by and between The County of Eagle, State of Colorado, whose address is 500 Broadway, P.O. Box 850 Eagle, CO 81631 (herein after referred to as "Landlord") and New Cingular Wireless PCS, LLC, a Delaware limited liability company, having a mailing address of 575 Morosgo Drive NE, Suite 13F, West Tower, Atlanta, GA 30324 (hereinafter referred to as "Tenant"). WHEREAS, Tenant has entered into an Option and Lease Agreement dated as of October 14, 2008 ("Option and Lease Agreement") at 815 UTE CREEK ROAD, WOLCOTT, CO 81655 (Site #DNVRCO4514)for the purpose of operating a telecommunications facility ("Communication Facility"); and WHEREAS, Tenant currently operates a telecommunications facility in the location described above, utilizing the Landlord's generator("Used Generator") and propane tank; and WHEREAS, Tenant wishes to replace the Landlord's Used Generator with a new 125kw Propane Kohler generator("New Generator"); and WHEREAS, Tenant wishes to own and share the use of the New Generator and propane tank with the Landlord for the above named facility; and WHEREAS, Tenant wishes to update its notice addresses; and WHEREAS, in order to facilitate such ownership and use, the parties desire to include the New Generator in the Option and Lease Agreement and provide certain services, all on the terms and conditions hereinafter set forth. NOW THEREFORE, in consideration of the mutual promises and covenants herein contained and for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged,the parties agree to amend the Option and Lease Agreement with the addition of the following: 1. The New Generator shall be installed in the location indicated on Exhibit A which is attached hereto and incorporated herein by reference. The location of the New Generator identified on Exhibit A shall be an Additional Premises. The term of this Amendment shall commence on the date of installation of the New Generator on the Additional Premises and shall terminate with the expiration or earlier termination of the Option and Lease Agreement. Tenant shall also perform in accordance with the terms of this Amendment and no additional rent or other charges shall be due from Tenant as a result of locating the New Generator on the Additional Premises. 2. Tenant shall purchase the New Generator and will pay for all reasonable and actual costs and fees associated with the delivery and installation of the New Generator at the Additional Premises for the use by both Landlord and Tenant. Title to the New Generator shall be owned by the Tenant,together with any and all applicable warranties from the manufacturer or installer. Tenant will remove the Used Generator and return it to Landlord without any cost to Landlord. 3. During the Term of this Amendment, Tenant shall be entitled to use seventy-five percent(75%)of available generator output power and Landlord shall be entitled to use the remainder of the generator output power from the New Generator at all times,twenty four hours a day, seven days a week as a backup power source for Tenant's and Landlord's respective facilities. Each party shall maintain at all times during the term of this Amendment an automatic transfer switch capable of starting and transferring their facilities to generator power should commercial service fail. 4. Tenant shall be fully and solely responsible for the maintenance, replacement and repairs of the New Generator, including but not limited to the following: Tenant shall (a) maintain in full force and effect all necessary federal, state and local requirements and maintain compliance with all rules, regulations and laws necessary for the use and operation of the New Generator consistent with other generators presently owned and operated by Landlord; (b) perform preventive maintenance on the New Generator pursuant to the manufacturer's requirements; (c) ensure the New Generator is properly fueled at all times; and (d)comply with all manufacturer warranty requirements. 5. The propane tank shall remain Landlord's property. Tenant is hereby granted access to and use of Landlord's existing fuel in the propane tank. Further, during the term of this Amendment Tenant, at its sole cost and expense, shall be responsible for maintaining fuel in the propane tank for use by Landlord and Tenant. Tenant agrees that at all times the propane tank shall be filled to at least fifty percent of the propane tank's capacity. 6. Neither Landlord nor Tenant shall be responsible to the other party for any indirect, incidental, consequential or special damages, including, without limitation, any damage to or loss of revenues, business or goodwill, suffered by any person or entity for any failure of the New Generator or failure of performance hereunder. Without limiting the foregoing, Tenant specifically makes no express warranties of merchantability or fitness for a particular purpose with respect to the New Generator. 7. The Parties acknowledge that it is Landlord's intent to at all times comply with the land patent agreement(s)between Landlord and United States Bureau of Land Management. This Amendment may be terminated by Landlord upon thirty(30)days prior written notice to Tenant, if Tenant's use of the Additional Premises for the purposes stated herein are no longer allowable. 8. The parties agree that Tenant shall provide construction drawings to Landlord for its approval, not to be unreasonably withheld prior to commencing installation of the New Generator. Further Tenant shall coordinate timing of installation of the New Generator with Landlord. 9. Section 17,Notices, of the Option and Lease Agreement, is amended in part as follows: It to Tenant: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Re: Cell Site#: DNVRCO4514; Cell Site Name: Wolcott(CO) Fixed Asset No.: 10115171 575 Morosgo Drive NE Suite 13-F West Tower Atlanta, GA 30324 With a copy to: New Cingular Wireless PCS,LLC AT&T Legal Department—Network Operations Attn: Network Counsel Re: Cell Site#: DNVRCO4514; Cell Site Name: Wolcott(CO) Fixed Asset No.: 10115171 208 S. Akard Street Dallas, TX 75202-4206 The copy sent to the Legal Department is an administrative step which alone does not constitute legal notice. 10. Capitalized terms in this Amendment will have the same meanings as in the Option and Lease Agreement. To the extent the terms and provisions of this Amendment conflict with portions of the Option and Lease Agreement,the terms and provisions contained herein shall govern and control. Except as expressly provided in this Amendment,the Option and Lease Agreement is in full force and effect and unmodified. 11. This Amendment expresses the entire understanding between the parties hereto with respect to the subject matter hereof and no representations, oral or written, other than those contained herein or in the Option and Lease Agreement, shall have any force or effect. Amendments hereto shall be effective only if made in writing and executed by all parties. [rest of page intentionally left blank] IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and year first above written. LANDLORD: Eagle County, Colorado By and through its County Manager /111111X' By: Ae Keith Montag, ounty Manager TENANT: New Cingular Wireless PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its: Manager By: CAI k Name: � -„ Title: - Date: 9-2y—:201N ■ EXHIBIT A j2( i14c`+ 'A= r , II Ala .r CiZi 1 i ` I �.1:_r ,47.7,,.7,.., ( J1 111.40. 71?"„CP:74 i ., + it io a I II I iMp 1 V V vt77e .Uiti,C I r__ __ /ii0 `+}4aln1i-1`oKa(�re w i se 4. Od- 14 �u G1evtPva,W.4. • 8-10-07