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Home My WebLink About950502.tiffFXHIBIT 3 r COMMUNICATIONS SITE LEASE (Colorado Ground Lease) SITE NAME: KEENESBURG SITE NO. CO0511011Z-2 )fs` Dated November 1, 1994 between OneComm Corporation, N.A. a Delaware corporation ("OneComm"), and having its principal place of business at 4643 South Ulster Street, Suite 500, Denver, Colorado 80237 Attn: General Counsel, and Harry A. and Barbara J. Pippin, Husband and Wife ("Lessor"), having their principal place of business at P.O. Box 15, Keenesburg, Colorado 80643. 1. The Property. Lessor is the record owner of a certain parcel of real property located in the State of Colorado, County of Weld, City of Keenesburg, commonly known as Weld County Road 18, Keenesburg, Colorado 80643, also known as Parcel No. 130527000019 (the "Property"). A legal description of the Property is contained in Exhibit A to this Lease. 2. Lease of the Premises. (a) Premises. Lessor hereby leases to OneComm and OneComm leases from Lessor that portion of the Property generally described as approximately two thousand five hundred (2,500') square feet of ground space, more particularly described as a fifty (50') foot by fifty (50') foot parcel of land on the Property upon which OneComm shall construct certain communications facilities consisting of an eleven (11') foot by twenty (20') foot enclosed equipment shelter, one tower/monopole and three omni directional or nine panel antennas (the "Premises"). A description of ithe Premises which may be used for legal purposes is contained in Exhibit 8 to this Lease. Lessor and OneComm hereby agree that the Premises including any Access Areas (defined herein) may be surveyed by a licensed surveyor at the sole cost of OneComm, and such survey shall then supplement Exhibit B, and become a part hereof and shall control to describe the Premises and Access Areas in the event of any discrepancy between such survey and the description of the boundary of the Premises contained herein. (b) OneComm Improvements. Following the Commencement Date, OneComm shall have the right to construct the Communications Site (defined herein) in accordance with the plans attached as Exhibit B which are hereby approved for construction by Lessor. Lessor acknowledges that certain modifications to the Premises not shown on Exhibit B may be required to accommodate construction of the Communications Site which do not require amendment of the building permit (such as orientation of the equipment shelter and tower or the number and type of antennas), which modifications OneComm may complete without further approval by Lessor. OneComm shall obtain the consent of Lessor, which consent shall not be unreasonably withheld, for any modifications required to accommodate the Communications Site not shown in -Exhibit B which require an amendment to the building permit. OneComm shall obtain all necessary governmental approvals and permits prior to commencing construction and shall provide Lessor with five (5) days notice prior to the start of construction to permit Lessor to post notices of non -responsibility. All OneComm contractors and subcontractors shall be duly licensed in the state where the Property is located. 3. flgt11• (a) Base Rent. OneComm shall pay to Lessor as rent the sum of per month, due and payable on the first day of each month, in advance, commencing on the Commencement Date and continuing during the term with the following base rent increases each renewal period: •First five (5) year extension base rent will be: "Second five (5) year extension base rent will be: •Third five (5) year extension base rent will be: •Forth five (5) year extension base rent will be: (b) Utility Charge. OneComm shall install separate utility meters at the Premises and, when permitted by the serving utilities, OneComm shall be responsible directly to the serving utilities for all utilities required for OneComm's use of the Premises. 4. Term of Lease. This Lease shall be for an initial term of five (5) years. OneComm shall have the right to extend its tenancy beyond the initial term for four (4) additional successive optional extension terms of five (5) years each. 5. Commencement Date: Governmental Permits. The initial term of this Lease shall commence on the earlier to occur of the first day of the first month following OneComm's notice to Lessor in writing that OneComm has obtained all permits and approvals necessary for OneComm to be legally entitled to construct the Communications Site for providing radio communications services at the Premises, or February 1, 1995 (the "Commencement Date"). OneComm shall be permitted to occupy the Premises and commence construction of the Communications Site upon receipt of all such permits and approvals and notice to Lessor as required in Section 2. Any such pre -Commencement Date occupancy by OneComm shall be under all the terms and conditions of this Lease and OneComm shall pay any portion of one month's rent due for such occupancy with the first month's rent due hereunder. 6. Use of the Premises. OneComm shall use the Premises as one of OneComm's radio communications sites (a "Communications Site") comprising OneComm's system (the "System") for providing radio and wireless telecommunications services to the public, including Enhanced Specialized Mobile Radio, Specialized Mobile Radio, short messaging, wireless data and any other radio service which OneComm is legally authorized to provide to the public during the term of this Lease. A Communications Site, for purposes of this Lease, is a site at which radio, telephone and communications equipment is installed and used to send and receive radio signals to and from wireless telephones and other radio devices and to connect those signals to radio, telephone or other CenCal! Colorado Ground Lease Form © March 1, 1994 Mackenzie 8 Albritton 1 950502 communications facilities either direct) / means of cables, or indirectly, by means of ,smitting and receiving facilities (including microwave antennas) located at the Communications Site. OneComm shall not use the Premises for any other purposes without the written consent of Lessor. 7. Easement. Lessor hereby grants to OneComm for the duration of this Lease, or any extensions thereof, an unimpaired, non-exclusive easement and right of way in and over the access roads shown in Exhibit B (if any)("Access Road"), the overhead or underground cable and utility runs shown in Exhibit B (if any) ("Service Easement"), the common areas at the Property and all areas necessary to provide physical access by personnel and equipment from the nearest public right of way, and utilities from the nearest service, to or from the Premises (the "Access Areas"). The rights granted to OneComm herein are for the purpose of installing, constructing, maintaining, restoring, replacing, and operating OneComm's equipment located within or on the Premises or such Access Areas, including, in the case of an emergency, the right to temporarily install a fuel powered electrical generator. Such rights shall include the right of ingress and egress, twenty-four (24) hours per day, seven (7) days per week over such Access Areas for access to or from any of OneComm's equipment. 8. Protections Against Interference. Lessor will not grant a lease to any party for use of the Property, if such use would interfere with OneComm's operation of the System. Any future lease of the Property which permits the installation of communication equipment shall be conditioned upon not interfering with OneComm's operation of the Communications Site. Without limiting any other remedy in law or equity, OneComm shall have the right to terminate this Lease upon thirty (30) days' written notice in the event its reception or transmission is interfered with by other antenna equipment, or obstacles constructed or operated in OneComm's reception or transmission paths. 9. Damage and Destruction. If the Premises are, in whole or in part, damaged or destroyed then: (1) if wholly damaged or destroyed so that all of the Premises are rendered permanently unusable for reconstruction of a Communications Site, this Lease shall then terminate and OneComm shall be liable for the rent only up to the time of such destruction and any rent prepaid by OneComm shall be returned to OneComm; but (2) if only partially destroyed and still usable for construction of a Communications Site, OneComm shall, within a reasonable time, repair the Premises with a reasonable reduction of rent from the time of such partial destruction until the Premises are again as fully usable by OneComm as they were before such partial damage or destruction; provided however that OneComm shall not be required to rebuild the Communications Site if: (i) such partial damage or destruction shall occur within three (3) months prior to the termination of this Lease; (H) OneComm continues to pay the rental amounts due hereunder and the Premises are maintained in a safe and sanitary condition; or (iii) such damage and destruction is directly caused by the negligence or misconduct of Lessor. A decision as to whether partially destroyed or partially condemned (for purposes of Section 10) Premises are still usable for reconstruction of a Communications Site, shall be made jointly by Lessor and OneComm, and, if they cannot agree, by an arbitrator reasonably acceptable to both parties. 10. Condemnation. If all or part of the Premises is taken by condemnation such that the Premises are no longer usable for reconstruction of a Communications Site, this Lease shall terminate unless OneComm's equipment and improvements can be relocated to another position at the Property acceptable to OneComm and Lessor. OneComm shall be entitled only to that portion of the proceeds of condemnation which is directly attributable to the value of OneComm's equipment and improvements and costs of relocation. 11. Need to Prevent Unsupervised Access. OneComm's communications equipment is highly sensitive and any entry onto the Premises which could damage or interfere with it must be controlled. Accordingly, although Lessor may have a key to the Premises, Lessor shall not enter the Premises (other than in an emergency) unless it has given OneComm twenty-four (24) hours' actual notice. In case of emergency, Lessor shall make reasonable efforts to notify OneComm prior to entering the Premises. 12. Termination by OneComrn. OneComm may terminate this Lease for cause upon the giving of thirty (30) days' written notice to Lessor if any of the following events occur: (a) OneComm fails to obtain or loses any necessary permits, approvals or orders and is thereby unable to use the Premises as a Communications Site; (b) If OneComm determines at any time that the Property is not appropriate for locating OneComm's communication equipment for technological reasons, including, but not limited to, signal interference or (c) Lessor fails to comply with any term, condition or covenant of this Lease and does not cure such failure within thirty (30) days after written notice thereof or in the event of a cure which requires in excess of thirty (30) days to complete, if Lessor has not commenced such cure within thirty (30) days of such notice and is not diligently prosecuting said cure to completion. OneComm shall have the right to cure any default by Lessor following such notice and cure period and to deduct the cost of such cure from rent due hereunder upon presentation of an accounting of such costs to Lessor. 13. Termination by Lessor. Lessor may terminate this Lease upon the occurrence of any of the following: (a) failure by OneComm to pay any rent required hereunder when due if such failure shall continue for more than ten (10) calendar days after delivery to OneComm of notice of such failure to make timely payment; (b) failure by OneComm to comply with any material term, condition or covenant of this Lease, other than the payment of rent, if such failure is not cured within thirty (30) days after written notice thereof to OneComm, or in the event of a cure which 'requires in excess of thirty (30) days to complete, if OneComm has not commenced such cure within thirty (30) days of such notice and is not diligently prosecuting said cure to completion; or (c) if OneComm becomes insolvent, or makes a transfer in fraud of creditors, or makes an assignment for the benefit of creditors, or files a petition under any section or chapter of the Federal Bankruptcy Code, as amended, or under any similar law or statute of the United States or any state thereof, or is adjudged bankrupt or insolvent in proceedings filed against OneComm thereunder, or if a receiver or trustee is appointed for all or substantially all of the assets of OneComm due to OneComm's insolvency. 14. Exercise of Options to Extend. OneComm shall have successive options to extend the term of this Lease for the successive extension periods set forth in Section 4 of this Lease, on the same terms, covenants and conditions (except as to the number of remaining option terms) as are contained in this Lease. OneComm shall be deemed to have timely exercised each option CenCall Colorado Ground Lease Form © March 7, 7994 Mackenzie & Albritton 2 .950572 without further notice to Lessor unlea ,neComm shall provide written notice to Lea not less than ten (10) days prior to the expiration of the then current term of OneComm's intent to terminate the Lease at the end of that term. 15. Warranties and Covenants of Lessor. Lessor warrants and covenants that (a) Lessor has legal right to possession of the Premises and the power and the right to enter into this Lease and that OneComm, upon the faithful performance of all of the terms, conditions and obligations of OneComm contained in this Lease, shall peaceably and quietly hold and enjoy the Premises upon the terms, covenants and conditions set forth in this Lease throughout the term of this Lease and any extensions thereof: (b) Lessor shall deliver the Premises to OneComm clean and free of debris on the Commencement Date and shall maintain the Property in a manner which will not interfere with OneComm's use of the Premises as contemplated hereby; (c) Lessor shall make available to OneComm at the Premises, all presently existing utility services required by OneComm for purposes of the operation of OneComm's equipment at the Premises, provided that OneComm may at its own expense (or Lessor may, if OneComm so requests, at OneComm's expense), install any and all additional utilities service facilities which are so required; (d) Lessor shall, during the term hereof, make payment of all real property taxes and general and special assessments levied against the Property and the Premises which it has the duty to pay within the time allowed by the taxing authorities in order to avoid penalty and OneComm shall compensate Lessor for any real property taxes directly attributable to the value of improvements placed upon the Premises by OneComm; and (e) OneComm shall have access to the Premises from the nearest public way at all times and all security gates and access roads (if any) shall be operational. 16. Warranties and Covenants of OneComnt. OneComm warrants and covenants that throughout the term of this Lease, OneComm shall maintain comprehensive liability insurance, naming Lessor as an additional insured, protecting and indemnifying Lessor and OneComm against claims and liabilities for injury, damage to persons or property, or for the loss of life or of property occurring upon the Premises resulting from any act or omission of OneComm, its employees, agents, contractors, and subcontractors. Such insurance shall afford minimum protection of not less than $1,000,000 for injury to or death of any one person, $2,000,000 for injury or death of two or more persons, and $1,000,000 for property damage. OneComm shall furnish Lessor with a certificate indicating the applicable coverage, upon request. OneComm shall maintain the Premises in a clean, safe and sanitary condition throughout the Lease Term. 17. Liability and Indemnification. OneComm shall at all times comply with all laws and ordinances and all rules and regulations of municipal, state and federal governmental authorities relating to the installation, maintenance, height, location, use, operation, and removal of improvements authorized herein, and shall fully indemnify Lessor against any loss, cost or expense which may be sustained or incurred by Lessor as a result of the installation, operation or removal of such improvements. Except for the acts of Lessor and Lessor's agents or employees Lessor shall not be liable to OneComm for any loss or damages arising out of personal injuries or property damage on the Premises. 18. Title To and Removal Of OneComm's Eauloment• Title to OneComm's equipment, and all improvements installed at and affixed to the Premises or Property by OneComm shall be and shall remain the property of OneComm. Lessor hereby waives any lien rights it may have or acquire with respect to such property and shall promptly execute any document, required by any supplier, lessor, or lender of such property which waives any rights Lessor may have or acquire with respect thereto. OneComm may, at any time, including any time it vacates the Premises, remove OneComm's improvements, equipment, fixtures, and all -of OneComm's personal property from the Premises, but OneComm shall not be required to remove any foundations for the tower or equipment shelter nor any underground cable or conduit. 19. Holding Over. If OneComm holds over after this Lease has been terminated, the tenancy shall be month -to -month, subject to the provisions of this Lease. 20. Surrender. Upon termination of this Lease, OneComm shall remove the equipment and improvements installed at the Premises by OneComm except as set forth in Section 18, and shall surrender the Premises in as good order and condition as when first occupied by OneComm, ordinary wear and tear and damage by fire or other casualty excepted. 21. Assignment and Subletting. OneComm shall not assign, sublet or otherwise transfer or encumber all or any part of OneComm's interest in this Lease without Lessor's prior written consent, which Lessor shall not unreasonably withhold. Notwithstanding the foregoing, OneComm may assign or sublet its interest in this Lease or may assign or sublet the Premises, or any portion thereof, without Lessor's consent, to any entity which controls, is controlled by, or is under the common control with OneComm, or to any entity resulting from any merger or consolidation with OneComm, or to any partner of OneComm or to any partnership in which OneComm is a general partner, or to any person or entity which acquires all of the assets of OneComm as a going concern, or to any entity which obtains a security interest in a substantial portion of OneComm's assets. Lessor hereby consents to: the assignment by OneComm of its rights under this Lease as collateral security to any entity which provides financing for the purchase of the equipment to be installed at the Premises; and the license of portions of the Premises to communications users similar to OneComm. Any such assignment, subletting or transfer shall not relieve OneComm of its obligations under this Lease. Should Lessor sell, lease, transfer or otherwise convey all or any part of the Property to any transferee other than OneComm, then such transfer shall be subject to this Lease and all of OneComm's rights hereunder and the easement rights of OneComm to the Access Areas. 22. Notices and Other Communications. Every notice required by this Lease shall be delivered either by (i) personal delivery, or (1) postage prepaid return receipt requested certified mail addressed to the party for whom intended at the addresses appearing in the first paragraph of this lease or at such other address as the intended recipient shall have designated by written notice. A copy of each notice sent to OneComm shall be sent to: Paul B. Albritton, Mackenzie & Albritton, One Post Street, Suite 500, San Francisco, CA 94104-. 23. Hazardous Substances. OneComm agrees that it will not use, generate, store or dispose of any Hazardous Material on, under, about or within the Property in violation of any law or regulation. Lessor represents warrants and agrees (1) that CenCau Colorado Ground Lease Form O March I, 1994 Mackenzie & Albritton 3 neither Lessor nor, to Lessor's knowlec any third party has used, generated, stored or .osed of, or permitted the use, generation, storage or disposal of, any Hazardous Material (defined below) on, under, about or witnin the Property in violation of any law or regulation, and (2) that Lessor will not, and will not permit any third party to, use generate, store or dispose of any Hazardous Material on, under, about or within the Property in violation of any law or regulation. Lessor and OneComm each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys fees and costs) arising from any breach of any representation, warranty or agreement contained in this Section. As used in this Section, "Hazardous Material" shall mean petroleum or any petroleum product, asbestos, any substance known by the state in which the Property is located to cause cancer and/or reproductive toxicity, and/or any substance, chemical or waste that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. 24. Waivers. Any waiver of any right under this Lease must be in writing and signed by the waiving party. 25. Written Agreement to Govern. This Lease is the entire understanding between the parties relating to the subjects it covers. Lessor acknowledges that this Communications Site Lease, once executed by Lessor, constitutes an offer to OneComm which shall not be binding upon the parties until accepted by OneComm's authorized signature below. 26. Attorneys' Fees. The prevailing party in any action or proceeding brought to enforce this Lease shall be entitled to recover its reasonable attorneys' fees, costs, and expenses in connection with such action or proceeding from the other party. 27. Further Assurances. In addition to the actions specifically mentioned in this Lease, the parties shall each do whatever may be reasonably necessary to accomplish the transactions contemplated in this Agreement including, without limitation: execution of all applications, permits and approvals required of Lessor for construction of the Communications Site by OneComm; cooperation in obtaining Non -Disturbance Agreements from holders of senior encumbrances on the Property; and execution of a Short Form Lease and a Memorandum of Commencement hereof in form appropriate for recording in the county in which the Premises are situated. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year first above written OneComm Corporation, corporation By: Title: Printep Name: DANNY E. STR0UD Date: // - S,199I pment SCHEDULE OF EXHIBITS: Exhibit A (the "Property"); 4 CenCall Colorado Ground Lease Form © March 1, 1994 Mackenzie 8 Albritton By: Printe• ame. Harry A. Pippin Date: 199 Social Security No. 523-24-0996 By: 73E:L.tAct taj Printed Name: Barbara J. Pippin Date: hot' , Jy 199 hi Social Security No: 558-36-8106 9`/9s51 -,S (Seal) Exhibit B (the "Premises"); Short Form of Lease 95O 22 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: OneComm Corporation, N.A. 4643 South Ulster Street, Suite 500 Denver, Colorado 80237 Attn: Michael R. Carper, Esq. SHORT FORM OF LEASE THIS SHORT FORM OF LEASE is made and entered into as of this first day of February 1995, by and between Harry A. and Barbara J. Pippin, Husband and Wife ("Lessor") and OneComm Corporation, N.A. a Delaware corporation ("OneComm"). WITNESSETH: That Lessor hereby leases to OneComm and OneComm hereby leases from Lessor a portion of that certain real property in the City of Keenesburg, County of Weld, State of Colorado, a legal description of which is shown in Exhibit A attached hereto and incorporated herein by reference, under the terms and conditions of the unrecorded Lease Agreement by and between Lessor and OneComm dated Nnt/Prsh¢,t I 1991and incorporated herein by reference (the "Lease Agreement"), for an initial term of five (5) years, and four (4) subsequent option I extension terms of five (5) years each, with a term commencement date of no later than February 1, 1995, pursuant to the terms of the Lease Agreement. The portion of the real property leased by Lessor to OneComm is that portion depicted on Exhibit B attached hereto and incorporated herein by reference. The Lease agreement provides for access and utility easements during the term of the Lease over Access Areas defined therein and also states, "Any future lease of the Property which permits the installation of communication equipment shall be conditioned upon not interfering with OneComm's operation of the Communications Site." All of the Lessor's covenants under the Lease are intended to and shall inure to the benefit of OneComm and its successors. IN WITNESS WHEREOF, the OneComm Corporation, corporation By: Title: l arties hereto have executed this Lease as of the day and year first above written. ware ice Presid-n , Netw,rk Development ACKNOWLEDGMENTS State of Color ) County of ,t �%i k/i'cff ) /I The foregoing/%nstrume t was acknowledged befoyem e, this �'_` day of „'(21L?�!, 199 % by .(2/2/(2 t". kCI;4/1,ia as £1 Mt_ t/d,._)( e / of OneComm, a Delaware corporation. WITNESS my hand and official seal. My commission expires: y92) / it /R, (99-8 By: 4n t 22av Barbara J. Pippin J (seal) ///7(r//. --a /.--C- e0Cf)2 ACKNOWLEDGMENTS CONTINUED a tesltt2c&e. — . State of Colorado County of State of Colorado krza County of T� a foregoing instrument was acknowlgdge before me this Lnw d and v-tl li t, K yt as _ WITNESS my hand and off' sal seal. My commission expires: P •lic The foregoing instrument was acknowledged before me this _ day of and as a 199 byB2Yb t&T- Qf iay of X7775 tppf:7 KceiveSba X91 C.o /6�/99g 199_, by _ as of WITNESS my hand and official seal. My commission expires: Notary Public Lease Agreement Exhibit A Legal Description of Property (May be added by Tenant or amended at a later date.) Wald , and sure er ommasa tavu: The N} of the 8}0f the 8} of Section 27, in Township 2 North, Range 64 Vest of the 6th P. M., together with all ditch, reservoir and vater rights of whatsoever kind of nature to which said land is entitled and sore partle^larly the vater and ditch rights to which said land is entitled by virtue of tie inclusion within the Henrylyn Irrigation district. 1.11 subject to the right of way of the -Dialing - ton Railway as appears in Book 86 at Page 456 and a Deed to Weld County for about 3 eons as appears in Book 963 at Pagr 547 and sub- ject to all reservations for mineral rights, ditch rights, etc. as appears in Book 201 at Page 66 and in Book 233 at Page 65. 29 0 /7 kUtm 10 i95+ p.70R r i rtif aaeaetl u_!_ddWa....�•t.h...__....._____....... __.--_ ask% its: 115151)7!} ___._^it" b_E'OJ1dES._„. .naeoran Created Couory of �I 6 X0502 al 7,-"E ,"..: r 1--`411 _.. r rA-1TrrCi/11'.'/—rwr7, 'Hp-7?)ti _T .—..._- &-;-257 2c, 1{ '3"ACT;/L' ,er ic7 5 997,41115;ly/J,1771 7/24' hr 1305-27 950- Hello