HomeMy WebLinkAbout20013205.tiff MEMORANDUM
I
I T \\ TO: FILE April 7, 2004
Wlaci`D I � FROM: Carol Harding, Clerk to the Board Office Manager Coo dinato // '
COLORADO SUBJECT: Document Not Fully Executed 0 V
The original of Document #2001-3205 (CM0013), which was approved by the Board of County
Commissioners on November 19, 2001, and executed by the Board on December 4, 2001, was
never received back in the Clerk to the Board's Office. All attempts to obtain copies of the document
have been unsuccessful,therefore,this matter is being administratively closed and no further action
will be taken by staff to obtain copies of the fully executed agreement.
2001-3205
CM0013
CAROL Harding Executed
Contract Not Yet
E......___ --....._._..._.__ _.._.. Page
..._.. 1
From: CAROL Harding dr I
To: CYNDY GIAUGQUE
Subject: Contract Not Yet Executed
Cyndy -
Reference the Tower Lease Agreement which was approved by the Baord on November 19, 2001. I
understand from your discussion with Shane, relayed to me by Donna, that the agreement has never
been signed by VoiceStream PCS Corporation. Apparenly Weld County is not currently paying the
lease on the tower, although we are using it.
I am attempting to close out the 2001 year as far as our records are concerned, and need to resolve this
in some manner. Would it be appropriate to have the BOCC rescind this resolution since the agreement
has never been executed by the other party? It sems that, after a full year, the agreement they would
sign would be amended or modified in some way from our orginal agreement, anyway, which is why I
suggest we simply rescind the lease agreement until a signed copy is received from VoiceStream PCS
Corporation, at which time it can be considered by the Board for approval.
Please let me know as soon as possible whether this action is appropriate.
Thanks.
Carol
CC: bbarker; Dwarden
RESOLUTION
RE: APPROVE TOWER LEASE AGREEMENT AND AUTHORIZE CHAIR TO SIGN -
VOICESTREAM PCS CORPORATION
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Tower Lease Agreement between the
County of Weld, State of Colorado, by and through the Board of County Commissioners of
Weld County, and VoiceStream PCS Corporation, with terms and conditions being as stated in
said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a
copy of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that the Tower Lease Agreement between the County of Weld, State
of Colorado, by and through the Board of County Commissioners of Weld County, and
VoiceStream PCS Corporation be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 19th day of November, A.D., 2001.
BOARD F COUNTY COMMISSIONERS
WELD UNTY, COLORADO
Fri 2 If
ATTEST: few(CY/tv/ ` M 11
a J. eile, "air
Weld County Clerk to the a i �° .
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Glenn Vaad, - em
BY: K�ic_,' `
Deputy Clerk to the Board 1--1-*
Will H. Jerke
APPROVVD AS F RM: (J c° rJ
D vi . Long
P
yAttorney 1V9� f�
Robert D. sden
/2/7/
Date of signature:
2001-3205
CM0013
VoiceStream Site Number: \/
VoiceStream Market:
Tenant Reference:
TOWER LEASE AGREEMENT
between
VOICESTREAM PCS CORPORATION
and
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W�' /)111/* 2001-3205
° Rev. Date: 11/15/1
TABLE OF CONTENTS
DESCRIPTION PAGE
1. Premises. 1
2. Prime Lease. 1
3. Use. 1
4. Tests and Construction. 2
5. Lease Term 3
6. Rent. 3
7. Facilities; Utilities; Access. 3
8. RF Compliance. 4
9. Non-Interference. 4
10. Relocation of Facilities. 5
11. Taxes. 5
12. Default 5
13. Termination. 5
14. Condemnation or Destruction. 6
15. Insurance. 6
16. Assignment and Subleasing. 7
17. Warranty of Title and Quiet Enjoyment. 7
18. Maintenance and Repairs. 8
19. Indemnity. 8
20. Environmental. 8
21. Estoppel. 9
22. Notice. 9
23. Miscellaneous. 9
ATTACHMENTS
Attachment 1: Legal Description of Property
Attachment 2: Plans and Specifications
Attachment 3: Prime Lease
VoiceStream Site Number: Rev. Date: 11/15/1; Page i
Tenant Site Reference:
Attachment 4: Owner's Consent
Attachment 5: Contact Information
Attachment 6: Memorandum of Agreement
TOWER LEASE AGREEMENT
This Tower Lease Agreement ("Lease") is entered into this day of , 200_
between VoiceStream PCS Corporation,a Delaware corporation,with a principal place of business at<Local
Market Address> ("Landlord") and , a
("Tenant").
RECITALS
WHEREAS, Landlord leases certain real property under the terms and conditions of a
Lease between ("Owner") and Landlord dated
("Prime Lease"). The real property is located in County, State of
and described on Attachment 1 attached hereto;
WHEREAS, Landlord has constructed a communications facility on the real property, which includes a
-foot Tower(defined below);
WHEREAS, Tenant desires to lease space on the Tower and Land (defined below)for Tenant's use in
conjunction with Tenant's construction and operation of its communications facility; and
WHEREAS, Landlord is willing to lease to Tenant certain space on the Tower and Land, under the terms
and conditions set forth herein.
NOW,THEREFORE,for good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the Landlord and Tenant agree as follows:
1 Premises.
Landlord currently leases, pursuant to the Prime Lease, a portion of the real property and associated
easements and/or rights of way(collectively the"Land")and owns and operates a wireless radio communications
and/or microwave tower or monopole (the "Tower") and communications equipment or cabinet(s) ("Enclosure")
located thereon as identified in greater detail herein (the Tower, Enclosure and Land are collectively, the
"Property"). Landlord, hereby leases to Tenant and Tenant leases from Landlord space on the Tower for
antenna(s)at a tip height of -feet on the Tower and ( )square foot
of space on the Land for Tenant's ground equipment along with non-exclusive access to Landlord's right-of-way
for ingress, egress and utilities as defined in the Prime Lease, each as shown on Attachment 2 (collectively, the
"Premises").
1. Prime Lease.
The Premises are a part of the same property leased to the Landlord by the Owner under the Prime Lease,
which is attached as Attachment 3 to this Lease. Landlord shall provide Tenant with a copy of the Prime Lease
and Tenant shall read and become familiar with the terms thereof prior to the execution of this Lease. The parties
agree that this Lease is subordinate to the Prime Lease. In the event of an inconsistency or conflict,the terms and
conditions of the Prime Lease shall govern and control. All activities by the parties shall conform to the
requirements of the Prime Lease, and any breach of the terms and conditions of the Prime Lease by Tenant, and
failure to cure such breach shall be deemed a material breach of this Lease. This Lease does not create a contract
between Tenant and the Owner. To the extent that Tenant's use of the Premises requires approval of the Owner,
it shall be Landlord's sole responsibility to arrange for such approval(s).Tenant shall not contact the Owner without
Landlord's consent. Landlord shall, upon knowledge of termination of Prime Lease, notify Tenant of same.
2. Use.
The Premises may be used by Tenant for the transmission and reception of radio communication signals
and for the construction, installation, operation, maintenance, repair or removal of related facilities now or in the
future so long as it is in compliance with Landlord's rights under the Prime Lease and subject to any limitations on
Tenant's Facilities set forth in this Lease. No changes in use of Tenant's equipment may be made without
Landlord's prior written consent. Landlord agrees to reasonably cooperate with Tenant, at Tenant's expense, in
making application for and obtaining all licenses, permits and any and all other necessary approvals that may be
required for Tenant's intended use of the Premises.
VoiceStream Site Number: Rev. Date: 11/15/1; Page 1
Tenant Site Reference:
3. Tests and Construction.
(a) Tenant shall have the right, subsequent to the execution of this Lease by Landlord and Tenant
("Execution Date") upon three (3) business days notice to Landlord, to enter upon the Land for the purpose of
conducting necessary engineering surveys, inspections, soil test borings, other reasonably necessary tests for
Tenant's proposed facilities(as defined in Paragraph 7(a)). Such tests shall be at Tenant's sole cost and expense,
and Tenant shall be responsible for any loss and/or damage and shall indemnify Landlord against same,and shall
repair and restore the Property in good, usable condition, normal wear and tear and casualty excepted,following
any such tests.
(b) Upon Tenant's request,Landlord agrees to provide Tenant copies of all plans,specifications,surveys
and Tower maps for the Land or Tower in Landlord's possession or reasonably available to Landlord. The Tower
map plan or similar document shall include the elevation of all antennas currently on the Tower. In reviewing
Tenant's plans, Landlord shall have sole discretion to approve or reject any modification(s)to Landlord's Tower
or Property. Tenant's Facilities shall not be installed in such a way as to extend higher than the existing height of
the Tower, nor shall Tenant extend the height of the Tower beyond its existing height, without Landlord's prior
written consent,which consent shall be at Landlord's sole discretion. If the Tower analysis demonstrates that the
Tower cannot hold Tenant's equipment, Tenant may choose, with the approval of Landlord in its sole discretion,
and at Tenant's expense, to enhance the Tower to hold said equipment.
(c) None of Tenant's Facilities shall be installed on the Tower nor shall any construction pertaining to
Tenant's Facilities commence until: (i) Tenant has submitted its construction and installation plans, including
structural analysis and any other reasonable documents requested by Landlord, and such documents have been
approved in writing by Landlord, such approval not to be unreasonably withheld; (ii) Tenant has submitted the
names of its contractors and/or subcontractors to Landlord in writing and such contractors and subcontractors have
been approved in writing by Landlord,such approval not to be unreasonably withheld; (iii)Tenant has obtained all
necessary governmental approvals and supplied proof of such approvals to Landlord; (iv) Landlord has obtained
the approval of the Owner if required under the Prime Lease(Attachment 4);and(v)Landlord has provided Tenant
written notice permitting Tenant to commence construction ("Notice to Proceed"). Upon receipt of Notice to
Proceed, Tenant shall notify Landlord (pursuant to the contact information found in Attachment 6) of their intent
to commence construction. Such notice shall be required at least twenty-four(24)hours prior to commencement
of construction. Landlord shall respond to Tenant's request for approval of Tenant's construction and installation
plans and provide Tenant with its requests for changes and/or objections within a reasonable period of time.
Tenant shall follow the same approval procedure if it desires to alter any plans or use any other contractor or
subcontractor.
(d) Tenant shall provide all labor for the installation, maintenance and repair of Tenant's Facilities at
Tenant's sole cost and expense.
(e) Upon the completion of Tenant's installation of Tenant's Facilities, but in no event later than ten(10)
business days following such completion, Tenant shall provide Landlord with as-built drawings of the equipment
installed on the Tower and on the Premises.
(f) Upon completion of and payment by Tenant for any structural enhancements and/or tower extensions,
such structural enhancements and/or tower extensions shall become the property of Landlord. Landlord shall
require that any structural modification meet the then current design standards for the applicable geographical
region. Upon request, Tenant shall promptly provide to Landlord any bills of sale or documentation evidencing
Landlord's ownership of said enhancements and/or extensions and shall take all steps needed to transfer same
to Landlord (including any ancillary rights such as warranties, etc)free and clear of all liens and encumbrances.
(g) Tenant shall take all precautions necessary to ensure the safety and protection of all persons and
materials at the Property while accessing the Premises or performing any work. Tenant shall give any applicable
notices and comply with all applicable local, state and federal laws, ordinances, rules, regulations and orders
related to Tenant's work and persons, property and worker safety on the Property. Such compliance shall include,
but not be limited to the most recent revision of 29 CFR 1910 et.seq. and 29 CFR 1926 et.seq. (commonly known
as OSHA code)in addition to any pertinent FCC and environmental laws. If Landlord becomes aware of a Tenant
violation, it may require Tenant to immediately provide additional safety precautions, including but not limited to
an on-site safety supervisor at Tenant's expense, or to cease construction and operation of Tenant's Facilities at
the site.
VoiceStream Site Number: Rev. Date: 11/15/1; Page 2
Tenant Site Reference:
4. Lease Term.
Subject to the term of the Prime Lease and any renewals thereof,the term of this Lease shall one be-five
f5)-(1)years commencing on the earlier of(i)the issuance of a Notice to Proceed by Landlord to Tenant,or(ii)sixty
(60) days from the Execution Date, whichever first occurs ("Commencement Date"), and terminating on the-fifth
anniversary of the Commencement Date ("Term"), unless otherwise terminated as provided in this Lease. The
Lease shall automatically be extended for twenty-five (25) successive one (1)five (5) year periods ("Renewal
Term(s)") on the same terms and conditions as set forth herein unless Landlord or Tenant notifies the other in
writing pursuant to Paragraph 22 of its intention not to renew at least one hundred and eighty(180)days prior to
commencement of the succeeding Renewal Term.
5. Rent.
On the Commencement Date and on the first day of each month thereafter,Tenant shall pay to Landlord
as rent("Rent")the following:
(a) For the first year of the Term Dollars($ ),payable in twelve
(12) equal installments of Dollars($ ) per month. The Rent for each
year thereafter shall be increased by four percent(4%)of the Rent paid over the preceding year. The Rent for any
fractional month at the beginning or at the end of the Term or Renewal Term shall be prorated. The Rent shall be
made payable to Landlord at the following address: VoiceStream PCS Corporation, PO Box 70870, CM
9762, St Paul, MN 55170 (subject to change upon Landlord's notice to Tenant). All Rent checks shall have
Landlord's site number clearly written on the face of the check.
(b) In the event Landlord and Owner agree to extend the term of the Prime Lease beyond its current
expiration term(the"Additional Extension Term(s)"), Landlord shall,within sixty(60)days of the time that Landlord
and Owner have agreed in writing for such Additional Extension Term(s), provide Tenant with written notice of the
Additional Extension Term(s), if said Additional Extension Term is within the Initial Term or any Renewal Term of
this Lease.
6. Facilities; Utilities; Access.
(a) Tenant, at its sole cost and expense and subject to Landlord's approvals as provided in Paragraph
4 above and other relevant portions of this Lease, has the right to erect, maintain and operate on the Premises
wireless radio communications facilities, including utility lines, transmission lines, and air-conditioned equipment
shelter or cabinets, electronic equipment, radio transmitting and receiving antennas and supporting structures as
depicted in Attachment 2 ("Tenant's Facilities"). In connection therewith and subject to this Lease and the Prime
Lease, Tenant has the right to prepare, maintain and alter the Premises for Tenant's approved use and to install
transmission lines connecting the antennas to the transmitters and receivers based on plans approved in writing
by Landlord. Tenant shall not construct or install any equipment or improvements on the Property other than which
are described in Attachment 2 without first obtaining the prior written consent of Landlord,which consent shall not
be unreasonably withheld. Tenant acknowledges that Landlord may charge additional fees for the installation of
any equipment not listed in Attachment 2. All construction and installation work shall be performed in a good and
workmanlike manner. Tenant's Facilities shall remain Tenant's personal property and are not fixtures. Tenant has
the right to remove all of Tenant's Facilities at its sole expense on the expiration or earlier termination of this Lease.
Tenant shall repair any damage to the Property or Premises caused by such removal, reasonable wear and tear
excepted.
(b) Liens. Tenant must keep the Premises and Site free from any liens arising from any work performed,
materials furnished, or obligations incurred by or at the request of Tenant, Tenant's agents, employees or
contractors.
If any lien is filed against the Premises or Site as a result of the acts or omissions of Tenant, or Tenant's
employees,agents or contractors,Tenant must discharge the lien or bond the lien off,in a commercially reasonable
manner, within ten (10)days after Tenant receives written notice from any party that the lien has been filed.
If Tenant fails to discharge or bond any lien within such period, then, in addition to any other right or
remedy of Landlord, Landlord may, at Landlord's election,discharge the lien by either paying the amount claimed
to be due or obtaining the discharge by deposit with a court or a title company or by bonding.
VoiceStream Site Number: Rev. Date: 11/15/1; Page 3
Tenant Site Reference:
Tenant must pay, within ten (10) days of receipt of Landlord's written demand, any amount paid by
Landlord for the discharge or satisfaction of any lien, and all reasonable attorneys'fees and other legal expenses
of Landlord incurred in defending any such action or in obtaining the discharge of such lien, together with all
necessary disbursements in connection therewith.
(c) Tenant shall obtain, at its sole cost and expense, separate utility services from any utility company
that will provide service to the Property. Tenant shall pay for the electricity it consumes in its operation at the rate
charged by the servicing utility company. Any easement necessary for such power or other utilities will be at a
location acceptable to Landlord and the servicing utility company. Tenant shall install a separate meter for Tenant's
use within the Property, unless Tenant obtains Landlord's prior written approval of an alternate location.
(d) On or after the issuance of Notice to Proceed and upon twenty-four (24) hour notice by Tenant to
Landlord to access the Property,Tenant,Tenant's employees, agents, contractors and subcontractors may enter
on or across the Land, subject to any restrictions set forth in the Prime Lease,twenty-four(24)hours a day, seven
(7)days a week,to obtain entry to the Premises for the purpose of constructing, installing, operating, maintaining
and repairing those parts of the Tenant Facilities that are ground-based. Tenant shall not,without prior notice to
and approval from Landlord, perform or arrange to be performed, any activities on the Tower. If reasonably
possible,any emergency installation,maintenance or repair of Tenant's Facilities on the Tower shall be performed
only with prior oral or written approval from Landlord, not to be unreasonably withheld or delayed. All notices and
approvals pursuant to this Paragraph 7(d) shall be provided to and obtained from Landlord, whose contact
information is listed in Attachment 5.
7. RF Compliance.
Tenant agrees to comply with all Federal Communications Commission ("FCC") rules and regulations.
Prior to commencement of Tenant's operations and at all other times that Landlord may reasonably request,Tenant
will provide Landlord with a radio frequency ("RF") site analysis that evaluates the simultaneous operation of all
transmitters on the Tower and compares the radiated power density in all accessible areas with the FCC maximum
permissible exposure("MPE") limits for workers and the general public. The power density within all areas of the
site must not exceed the FCC specified MPE limits currently in effect. If mitigation is required due to Tenant's
location on the Tower, such mitigation measures shall be the responsibility and expense of Tenant, provided,
however, that Landlord shall reasonably cooperate with all such mitigation efforts. Should Tenant not undertake
mitigation or other efforts that bring the site into compliance with FCC rules within a reasonable time, Landlord may
undertake--any reasonable efforts to bring the site into compliance at the sole expense of Tenant. If mitigation is
required-due to a subsequent change in Landlord's operation,or a subsequent user on the Tower,such mitigation
measures shall be the responsibility of Landlord, provided however, that Tenant shall reasonably cooperate with
all such mitigation efforts. If mitigation is required due to RI transmitters in the vicinity of but not located on the
Tower, Tenant shall share in the proportional costs of mitigation along with all RF emission contributors.
Non-Interference.
Tenant agrees that Tenant's Facilities shall not cause interference to existing use or enjoyment of the
Property or Tower by Landlord and other tenants, lessees and licensees located on the Tower or Property prior
in time to Tenant's use including, but not limited to interference with radio communication facilities so located and
existing as of the Commencement Date of this Lease. Similarly, Landlord shall not use, nor shall Landlord permit
its tenants, licensees, employees, invitees or agents to use any portion of the Property in any way that interferes
with the operations of Tenant that comply with the terms of this Lease. Such interference shall be deemed a
material breach by the interfering party,who shall,upon written notice from the other,be responsible for terminating
said interference at such interfering party's sole expense. The non-interfering party shall not be required to provide
a cure period to the interfering party, but shall provide the interfering party with written notice of such interference
and the interfering party shall use its best efforts to eliminate the interference immediately but in no extent later than
seventy-two (72) hours from the receipt of such notice. Thereafter, the party suffering the interference may
terminate this lease, pursue remedies available at law or in equity, or pursue injunctive relief.
8. Relocation of Facilities.
(a) Upon ninety(90)days written notice to Tenant by Landlord,Tenant's Facilities on the Tower shall be
relocated to a new location on the Tower to accommodate the communications equipment of Landlord except, if
in Tenant's reasonable determination, the new location causes a material degradation to the level of service
provided by Tenant's Facilities in comparison to the original location, Tenant shall have the right to immediately
VoiceStream Site Number: Rev. Date: 11/15/1; Page 4
Tenant Site Reference:
terminate this Lease. Such determination and notice of, shall be made by Tenant to Landlord within fifteen (15)
days of Landlord's notice to Tenant of relocation.
(b) Tenant shall relocate Tenant's Facilities,within such ninety(90)day period at Landlord's reasonable
expense. Should Tenant not relocate Tenant's Facilities within such ninety(90)day period and does not terminate
this Lease as provided above, Landlord shall have the right, at Tenant's sole cost,to relocate Tenant's Facilities.
(c) In the event of Tenant's termination as provided above,Tenant shall remove Tenant's Facilities within
thirty(30)days after Landlord's receipt of written notice of Tenant's termination of this Lease. Should Tenant not
remove Tenant's Facilities within such thirty(30)day period, Landlord shall have the right, at Tenant's sole cost,
to remove and store or dispose of Tenant's Facilities. Upon such termination, the parties to this Lease shall be
released from all duties,obligations,liabilities and responsibilities under this Lease except for any storage charges,
indemnity and tax obligations, and Tenant's obligation to remove Tenant's Facilities from the Property.
9. Taxes.
Except as hereinafter provided, Landlord shall pay all taxes it is obligated to pay under the Prime Lease.
Tenant shall reimburse Landlord for any taxes that Landlord is obligated to pay as a direct result of Tenant's use
of the Property(e.g., an increase in value assessment of the Tower due to Tenant equipment being placed on the
Tower), except for increases attributable to structural enhancements or pole replacement, which Landlord, as
owner, shall pay. As a condition of Tenant's obligation to pay such tax increases, Landlord shall, if reasonably
possible, provide to Tenant documentation in Landlord's possession from the taxing authority which indicates the
tax was due to Tenant's use of the Property.
10. Default.
(a) Any of the following shall be considered a default under this Lease: (i)Tenant fails to pay any rent
required by this Lease hereunder within ten (10) days after receipt of written notice of such failure; or(ii) except
as set forth in Paragraph 9, if either party fails to observe or perform its obligations under this Lease and does not
cure within thirty (30) days after receipt of written notice of breach; or such longer period as may be required to
diligently complete a cure, not to exceed sixty(60)days,provided said party has commenced curing within five(5)
days after receipt of written notice of breach.
(b) Upon Landlord obtaining a valid court order declaring Tenant in default,Tenant shall be liable for all
expenses, including attorneys' fees and costs, incurred by Landlord in connection with any Tenant default,
including,without limitation,any action to enforce the terms hereof,or in connection with any action for the recovery
of the Premises itself. Any repossession by Landlord of the Premises shall not affect the obligations of Tenant for
the unexpired term.
11. Termination.
(a) This lease may be terminated immediately upon written notice by Landlord if Tenant defaults under
Paragraph 112, Default, above.
(b) This lease may be terminated without further liability to either party on thirty (30) days prior written
notice as follows: (i) by either party if it does not, following commercially diligent efforts, obtain or maintain any
license, permit or other approval necessary for the construction and operation of Tenant's Facilities; or (ii) by
Landlord if Landlord's Prime Lease with Owner terminates during any term of this Lease;-or (iii) by Tenant if
Landlord defaults under Paragraph 12(a)(ii), Default, above; or(iii)by Tenant, upon six(6) months notice,for any
or no reason.
(c) Tenant shall remove its personal property within sixty (60) days after termination of this Lease. If
Tenant fails to remove its personal property within sixty(60)days after the termination of this Lease,Landlord may,
at its sole discretion, remove and store or dispose of same. Tenant shall reimburse Landlord for any expenses
Landlord incurs as a result thereof, including reasonable attorneys' fees, within ten (10) days of receipt of
Landlord's written demand for payment.
12. Condemnation or Destruction.
(a) If the whole or any substantial part of the Property subject to this Lease shall be taken by any public
authority under the power of eminent domain so as to interfere with Tenant's use and occupancy thereof,then this
VoiceStream Site Number: Rev. Date: 11/15/1; Page 5
Tenant Site Reference:
Lease shall cease on that part of the Property so taken on the date of possession by the condemning authority,
and any Rent paid in advance of such date for Tenant's previously expected occupancy of the condemned property
after the date of the condemning authority's possession shall be refunded to Tenant.
(b) If the Premises are destroyed or damaged such that, in Tenant's reasonable judgment, such
destruction or damage of the Premises substantially affects the effective use of the Premises for Tenant's
operations,then this Lease shall immediately terminate. In such event,all rights and obligations of the parties shall
cease as of the date of the damage or destruction,except for Tenant's obligation to remove equipment and restore
any damage caused thereby. In the alternative, Tenant may elect to continue this Lease and all Rent shall abate
until the Premises are restored to the similar condition existing prior to such damage or destruction or to a
reasonable condition sufficient for Tenant's operations, provided that such damage or destruction is not the fault
of Tenant.
13. Insurance.
In addition to those insurance requirements contained in the Prime Lease, Tenant shall maintain the
following insurance coverage in full force during the term of this Lease:
(a) Workers'Compensation and Employer's Liability Insurance.Workers'compensation insurance shall
be provided as mandated by state law where the Property is located for all Tenant employees,agents,contractors
and subcontractors. Employer's liability insurance shall be provided in amount not less than One Million Dollars
($1,000,000). To the fullest extent permitted by law, Tenant agrees that its workers' compensation policy will be
endorsed to include a Waiver of Subrogation provision.
(b) Commercial General Liability Insurance. Tenant shall carry commercial general liability insurance
covering all operations by or on behalf of Tenant for injury to or death of persons and damage to property(including
the loss of use thereof), including broad form property damage and explosion,collapse and underground hazards,
Products and Completed Operations coverage and Contractual Liability covering the indemnification contained in
Section 19 of this Lease. Limits of liability shall not be in amounts less than One Million Dollars($1,000,000) per
occurrence and Two Million Dollars ($2,000,000) general aggregate. The general aggregate limit shall apply on
a per location and per project basis. Landlord, its subsidiaries, affiliates, and their respective officers, directors,
and employees shall be named as additional insureds. Tenant agrees that its Commercial General Liability policy
will be endorsed to include a Waiver of Subrogation provision for the benefit of Landlord, its subsidiaries, affiliates
and their respective officers, directors and employees.
(ccj Automobile Insurance. Tenant shall carry commercial automobile liability insurance, including
coverage for all owned, hired and non-owned automobiles. The amount of coverage shall not be less than One
Million Dollars ($1,000,000) combined single limit each accident for bodily injury and property damage.
fL) Commercial Property and Builder's Risk Insurance. Tenant shall carry"all risks"or"special causes
of loss" property insurance on its personal property, including but not limited to its tools, equipment, machinery,
materials and supplies in an amount sufficient to repair or replace such property. Tenant further agrees to maintain
"all risk"or"special causes of loss" builder's risk and/or installation floater insurance in an amount not less than
the full replacement cost of such structure or equipment at time of completion. Tenant agrees its Property
Insurance and Builder's Risk/Installation Floater policy forms will include a Waiver of Subrogation provision for the
benefit of Landlord, its subsidiaries, affiliates, and their respective officers, directors and employees.
(e) Umbrella Insurance. Tenant shall maintain an Umbrella insurance policy providing coverage excess
of its primary Commercial General Liability, Automobile Liability,and Employer's Liability policies in an amount not
less than Five Million Dollars($5,000,000)per occurrence and Five Million Dollars($5,000,000)general aggregate.
The general aggregate limit shall apply on a per location and per project basis. Landlord, its subsidiaries,affiliates
and their respective officers, directors, and employees shall be named as additional insureds.Tenant agrees that
its Umbrella Liability policy will be endorsed to include a Waiver of Subrogation provision for the benefit of Landlord,
its subsidiaries, affiliates and their respective officers, directors and employees.
(fl Certificates of Insurance. Certificates of insurance, as evidence of the insurance required by this
Lease, shall be furnished by Tenant to Landlord before any construction is commenced. The certificates of
insurance shall provide that there will be no cancellation without thirty (30) days prior written notice to Landlord.
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(g) All policies shall be written by insurance companies licensed to issue policies in the state of the
Property and with a Best A.M. rating of no less than A-.
(h) The coverage afforded under Tenant's Commercial General Liability and Umbrella insurance policies
shall be primary to any liability insurance carried by Landlord,whose insurance(s), if any,shall be excess and non-
contributory for claims and losses arising out of Tenant's performance under this Lease.
(i) Tenant shall cause each contractor or subcontractor to maintain insurance coverages and limits of
liability of the same type and the same amount as are required of Tenant under this Paragraph 15, adjusted to the
nature of the contractor's or subcontractor's operations, as approved by Landlord. Tenant further agrees it will
comply with any insurance requirements contained in the Prime Lease. Tenant shall obtain, prior to the
commencement of the contractor's or subcontractor's work, certificates of insurance.
14. Assignment and Subleasing.
(a) Landlord may assign or otherwise transfer this Lease and, upon such assignment or transfer of this
Lease, Landlord shall have no further rights or obligations thereunder.
(b) Tenant shall not sublease the Lease or the Premises. Except as hereinafter provided, Tenant may
not assign or otherwise transfer all or any part of its interest in this Lease, or in the Premises, without the prior
written consent of Landlord, such consent not to be unreasonably withheld or delayed. Tenant may assign or
otherwise transfer its interest in this Lease, to (i) any affiliate of Tenant, (ii) any partnership, corporation or other
business entity into which Tenant shall be merged, converted or consolidated in accordance with applicable
statutory provisions governing merger, conversion or consolidation of the applicable business entity, (Hi) a
partnership, corporation or other business entity which is a direct successor to Tenant owning all or substantially
all of Tenant's business and assets; or (iv) any person or entity that, after first receiving the necessary FCC
licenses,acquires Tenant's radio communications business or assets and assumes all obligations of Tenant under
the Lease provided that, in connection with any assignment described in subsections (i), (ii), (iii) and (iv) of this
Paragraph 16, (a)Tenant shall have given Landlord prior written notice of such assignment, (b)at the time thereof
no event of default has occurred and is continuing and no event has occurred which with the giving of notice or the
passage of time, or both would constitute an event of default, and (c) the proposed transferee shall deliver to
Landlord a written agreement whereby it expressly assumes all of the Tenant's obligations under this Lease. A
person, association, partnership, corporation or joint-stock company, trust, or other business entity, however
organized, is an affiliate of the person or entity which directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such person. Control shall be defined as(i)ownership
of 50%or more of the voting power of all classes of voting stock or(H)ownership of 50%or more of the beneficial
interests in income and capital of an entity other than a corporation.
15. Warranty of Title and Quiet Enjoyment.
Landlord warrants that: (i) Landlord leases or owns the Land and owns and operates the Tower and the
Enclosure located thereon and has rights of access thereto; (ii) Landlord has full right to make and perform this
Lease; and(iii) Landlord covenants and agrees with Tenant that upon Tenant paying the Rent and observing and
performing all the terms,covenants and conditions set forth in this Lease,Tenant may peacefully and quietly enjoy
the Premises.
16. Maintenance and Repairs.
Tenant shall perform all repairs necessary or appropriate to keep Tenant's Facilities on or about the
Premises or located on any appurtenant rights-of-way or access to the Premises in good and tenantable condition.
17. Indemnity.
(a) To the extent permitted by law, Tenant hereby agrees to indemnify, defend and hold Landlord, its
subsidiaries, affiliates and their respective officers, directors and employees harmless from and against any and
all claims, damages, losses and expenses (relating to, among other things, any bodily injury, personal injury or
property damage),including,but not limited to, reasonable attorneys'fees and expenses,arising out of or resulting
from: (i)Tenant's breach of this Lease; (H)the conduct of Tenant's business; (iii)any negligent act or omission or
willful misconduct of Tenant;(iv)any action or inaction of Tenant which directly or indirectly results in or contributes
to any damage to, or contamination of,the environment, in any way,whether or not such action or inaction results
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in a breach of this Lease; or (v) any of the foregoing with respect to any employee, agent, contractor or
subcontractor of Tenant.
(b) Tenant shall pay all fines, penalties, and other similar charges which may be imposed upon it or
Landlord,its subsidiaries or affiliates,because of the failure of Tenant or its respective officers,agents,employees,
contractors or subcontractors, in the course of the installation,to adhere to applicable federal, state or local laws,
ordinances, rules, regulations, or building and safety codes. Tenant shall give Landlord immediate notice of, and
Tenant shall defend all charges, notices of violation, claims, proceedings and investigations involving Landlord,
its subsidiaries, affiliates and their respective officers, directors, agents, or employees from and against all such
fines, penalties, and other similar charges.
(c) In any and all claims by an employee of Tenant,any agent,any contractor,any subcontractor,anyone
directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the
indemnification obligations under this Lease shall not be limited in any way by any limitation on the amounts or
types of damages, compensation or benefits payable by or for Tenant or any agent, contractor or subcontractor
under worker's or workmen's compensation acts, disability benefit acts or other employee benefit acts. For any
Lease relating to a site located in the state of Washington,Tenant waives its immunity under industrial insurance,
Title 51 RCW. Such waiver has been mutually negotiated by the Tenant and Landlord as evidenced by their
specific and express initialing of this section.
TENANT'S INITIALS LANDLORD'S INITIALS
(d) Tenant shall further hold harmless and indemnify Landlord, its subsidiaries, affiliates and their
respective officers, directors and employees from and against any and all suits, claims, actions or liabilities
whatsoever, including reasonable attorneys' fees and expenses, incurred in connection therewith or with
successfully establishing the right of indemnification hereunder which arises out of breach or default by Tenant in
performance of any obligation to be performed by Tenant under this Lease.
(e) To the extent the Prime Lease imposes any indemnification requirements on Landlord that pertain to
the Premises or Tenant's use thereof, then such different or additional requirements shall be imposed upon, and
satisfied by, Tenant.
18. Environmental.
(a) Tenant shall not store any Hazardous Materials (defined below) of any kind on the Property except
in accordance with applicable law. In the event the Property becomes contaminated by Hazardous Materials or
contaminated waste materials brought, used, manufactured, or stored on the Property by Tenant or any of its
agents,employees,contractors or subcontractors,Tenant shall be responsible for,and pay all costs for the removal
and disposal of all such materials as required by law; and further, Landlord may terminate this Lease without
penalty.
(b) To the extent permitted by law,Tenant shall be solely responsible for and will defend, indemnify and
hold Landlord, its subsidiaries, affiliates and their respective officers, directors, employees and agents harmless
from and against any and all direct claims, costs, and liabilities, including reasonable attorney's fees and costs,
arising out of or in connection with the cleanup or restoration of the Property associated with Tenant's use of
Hazardous Materials.
(c) "Hazardous Materials" means asbestos or any hazardous substance, waste or materials as defined
in any federal, state or local environmental or safety law or regulation including, but not limited to CERCLA. The
obligation of this Paragraph shall survive the expiration or other termination of this Lease.
19. Estoppel.
Either party shall, at any time upon thirty (30) days prior written notice from the other, execute,
acknowledge and deliver to the other a written statement to the extent the following are true: (i)certifying that the
Lease is unmodified and in full force and effect(or,if modified,stating the nature of such modification and certifying
the Lease, as so modified, is in full force and effect) and the date to which the Rent and other charges are paid in
advance, if any, and(ii)acknowledging that there are not,to such party's knowledge,any uncured defaults on the
part of the other party hereunder, or specifying such defaults if any are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of the Property.
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Tenant Site Reference:
20. Notice.
All notices must be in writing and are effective three (3)days after deposit in the U.S. mail, certified and
postage prepaid, or upon receipt when sent via nationally recognized overnight courier, to the address set forth
below.
If to Landlord, to: With a copy to:
VoiceStream PCS_Corporation VoiceStream PCS_Corporation
Attn: Lease Administrator Attn: Lease Administrator/Legal Department
<Local Market Address> 12920 SE 38th Street
<City/State/Zip> Bellevue, WA 98006
If to Tenant,to: With a copy to:
Landlord or Tenant may from time to time designate any other address for this purpose by written notice
to the other party.
21. Miscellaneous.
(a) This Lease constitutes the entire lease and understanding between the parties, and supersedes all
offers, negotiations and other leases concerning the subject matter contained herein. Any amendments to this
Lease must be in writing and executed by both parties.
(b) If any provision of this Lease is invalid or unenforceable with respect to any party, the remainder of
this Lease or the application of such provision to persons other than those as to whom it is held invalid or
unenforceable, shall not be affected and each provision of this Lease shall be valid and enforceable to the fullest
extent permitted by law.
(c) This Lease shall be binding on and inure to the benefit of the successors and permitted assignees
of the respective parties.
(d) This Lease shall be construed in accordance with the laws of the county and state in which the Land
is located.
(e) All Riders, Exhibits, and Attachments annexed hereto form material parts of this Lease and are
incorporated herein.
(f) This Lease may be executed in duplicate counterparts, each of which shall be deemed an original.
(g) Each party agrees and hereby waives any claim for consequential, incidental, punitive, damages or
lost profits as to the other party.
(h) The substantially prevailing party in any litigation arising herewith shall be entitled to its reasonable
attorney's fees and court costs, including appeals, if any.
(i) Subject to any restrictions in the Prime Lease, Landlord acknowledges that a Memorandum of Lease
in the form attached as Attachment 6 may be recorded by Tenant,at Tenant's option, in the Official Records of the
County where the Land is located;provided,Tenant shall promptly record a termination of Memorandum of Lease
upon termination of this Lease. This provision shall survive termination of this Lease.
(i) The persons who have executed this Lease represent and warrant that they are duly authorized to
execute this Lease in their individual or representative capacity as indicated.
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Tenant Site Reference:
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first above written.
LANDLORD: TENANT:
VoiceStream PCS Corporation
By: B y •
(Signature) (Signature)
(Print) (Print)
Title: Title:
Date: D a t e
VoiceStream Site Number: Rev. Date: 11/15/1; Page 10
Tenant Site Reference:
STATE OF WASHINGTON
ss.
COUNTY OF KING
I certify that I know or have satisfactory evidence that is the person who
appeared before me,and said person acknowledged that he/she signed this instrument,on oath stated that he/she
was authorized to execute the instrument and acknowledged it as the of
VoiceStream PCS _ Corporation to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
STATE OF
) ss.
COUNTY OF
I certify that I know or have satisfactory evidence that is the person
who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that
he/she was authorized to execute the instrument and acknowledged it as the of
to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
VoiceStream Site Number: Rev. Date: 11/15/1; Page l l
Tenant Site Reference:
ATTACHMENT I
LEGAL DESCRIPTION OF PROPERTY
to the Tower Lease dated 200_, by and between
, as Landlord, and , as Tenant.
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Tenant Site Reference:
ATTACHMENT 2
PLANS AND SPECIFICATIONS
(including description of the antenna location, and location of ground equipment adjacent to the Premises)
to the Tower Lease dated 200_, by and between
, as Landlord, and , as Tenant.
Proposed Equipment is defined below and Plans and specifications are attached hereto.
Number of Antennas:
Antenna Manufacturer and Type-Number:
Weight and Dimension of Antenna(s) (L x W x D):
Number of Transmission Lines:
Transmission Line Mfr. and Type No.:
Diameter and Length of Transmission Line:
Location of Antenna(s) on Tower(Approved RAD Center):
Direction of Radiation (Azimuth):
Dimensions of Ground Space subleased:
Frequencies/Max. Power Output:
Notes:
1. The plans and specifications attached hereto are provided as Lease Exhibits only. Approved Final
Construction drawings are required prior to commencement of construction. Actual"as built" drawings shall
be attached and incorporated herein at the time of completion of construction.
2.
3. This Attachment is to include any plans for routing lines, utility wires, etc. on or across the Property.
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Tenant Site Reference:
•
ATTACHMENT 3
PRIME LEASE
to the Tower Lease dated
200_,by and between ,as Landlord,and
, as Tenant.
The Prime Lease is attached hereto.
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Tenant Site Reference:
ATTACHMENT 4
OWNER'S CONSENT
to the Tower Lease dated
200_,by and between ,as Landlord,and
, as Tenant.
Owner's Consent is attached hereto.
•
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Tenant Site Reference:
ATTACHMENT5
CONTACT INFORMATION
to the Tower Lease dated
200_,by and between ,as Landlord,and
, as Tenant.
LANDORD:
Operation's Department,Address, Telephone, Fax
TENANT:
Operation's Department, Address, Telephone, Fax
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Tenant Site Reference:
ATTACHMENT 6
MEMORANDUM OF LEASE
to the Tower Lease dated
200_,by and between ,as Landlord,and
, as Tenant.
This Memorandum of Lease is entered into on this_day of ,200_,by and between
,with an office at (hereinafter
referred to as "Landlord") and , with an office at
(hereinafter referred to as "Tenant).
1. Landlord and Tenant entered into a Lease on the
day of ,200_,for the purpose of installing,operating and maintaining a radio communications facility
and other improvements. All of the foregoing are set forth in the Lease.
2. The term of the Lease is for five(5)years commencing
on , 200 and ending on , with five (5) successive five (5)
year options to renew. If all options to renew are exercised, the term of this Tower Lease will expire thirty (30)
years after the Commencement Date (as defined in the Lease).
3. The Land is described in Attachment A annexed
hereto. That portion of the Land being leased to Tenant("Premises")is described in Attachment B annexed hereto.
IN WITNESS WHEREOF,the parties have executed this Memorandum of Lease as of the day and year first above
written.
LANDLORD: TENANT:
VoiceStream PCS Corporation
By: B y •
(Signature) (Signature)
(Print) (Print)
Title: Title:
Date: D a t e •
VoiceStream Site Number: Rev. Date: 11/15/1; Page 17
Tenant Site Reference:
STATE OF WASHINGTON
ss.
COUNTY OF KING
I certify that I know or have satisfactory evidence that is the person who
appeared before me,and said person acknowledged that he/she signed this instrument,on oath stated that he/she
was authorized to execute the instrument and acknowledged it as the of
VoiceStream PCS _ Corporation to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
STATE OF
) ss.
COUNTY OF
I certify that I know or have satisfactory evidence that is the person
who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that
he/she was authorized to execute the instrument and acknowledged it as the of
to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
C:\Cyndy\Backup\work_dsk\W eldCountySAMPLE.doc
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