HomeMy WebLinkAbout970828.tiffRESOLUTION
RE: APPROVE COMMERCIAL REAL ESTATE SALES AGREEMENT WITH U S WEST
COMMUNICATIONS, INC. AND AUTHORIZE CHAIR TO SIGN
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 Commercial Real Estate Sales
Agreement between the County of Weld, State of Colorado, by and through the Board of
County Commissioners of Weld County, on behalf of the Weld County Regional
Communications Center and U S West Communications, Inc., 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 Commercial Real Estate Sales Agreement between the
County of Weld, State of Colorado, by and through the Board of County Commissioners of
Weld County, on behalf of the Weld County Regional Communications Center, and U S West
Communications, Inc., 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 30th day of April, A.D., 1997.
,Onhillud
ty Clerk to the Board
�w
eputy Cler ;o the Board
BOARD OF COUNTY COMMISSIONERS
WELD BOUNTY, COL
ORADO
DO
/George E. Baxter, Chair
rem tance L. Harbertf Proem
,f
Dale K. Hall
EXCUSED DATE OF SIGNING
Barbara J. Kirkmeye , ��11
ty-
W. H. Webster
(AYE)
970828
�: c1 /1 CM0010
COMMERCIAL REAL ESTATE SALES AGREEMENT
THIS AGREEMENT is made this 31.a of .c1j-1997, by and between U S WEST Communications,
Inc., a Colorado corporation, formerly known as the Mountain States Telephone and Telegraph Company (the
"Seller"), and County of Weld, a Political Subdivision of the State of Colorado, (the "Purchaser").
1. Agreement of Sale.
Subject to the terms and conditions contained in this Agreement, Seller agrees to sell to Purchaser, and
Purchaser agrees to purchase, the real property at 3101 35th Avenue, Greeley, CO 80634, generally depicted as the
highlighted area on Exhibit A attached to and incorporated in this Agreement (the "Land") together with a sewer line
easement over Seller's property, and all existing improvements located on the Land, if any, excluding, however, any
personal property owned by Seller, those improvements identified on Attachment #1 hereto (the "Facilities") and
subject to the reservation of easement discussed below (the "Improvements"). The precise perimeter of the Land will
be described in the Survey (as defined in Section 3(c) below) and shall become Exhibit B hereto. The Land and the
Improvements are referred to in this Agreement as the "Property."
2. Purchase Price.
The purchase price for the Property shall be One Hundred Ninety -Seven Thousand and no/100ths dollars
($197,000.00) (the "Purchase Price") and shall be payable as follows:
(al Contemporaneously with Purchaser's execution and delivery of this Agreement, Purchaser
shall deposit with Weld County Title the sum of $10,000.00 in the form of a check, (the "Earnest Money").
(b) The balance of the Purchase Price, $187,000.00 (plus or minus prorations made pursuant
to this Agreement), shall be paid by Purchaser at closing in cash, certified check, or cashier's check (the "Cash
Payment").
3. Purchaser's Inspection.
(a) Purchaser shall have 7 days, commencing on the date of this Agreement (the "Inspection
Period"), to have the Property inspected and to conduct such tests and investigations as Purchaser deems advisable.
All such investigations shall be at the sole cost and expense of Purchaser. Purchaser shall have no right to conduct
a Phase II environmental assessment of the Property without Seller's prior written consent. If written notice of any
unsatisfactory condition, signed by Purchaser, along with an unequivocal notice of Purchaser's election to terminate
this Agreement, is not received by Seller prior to expiration of the Inspection Period, the condition of the Property
shall be deemed satisfactory to Purchaser. If written notice of any unsatisfactory condition, signed by Purchaser,
and stating Purchaser's unequivocal election to terminate this Agreement, is given to Seller prior to expiration of the
Inspection Period, this Agreement shall terminate, the Earnest Money shall be returned to Purchaser and the
Purchaser and Seller shall be relieved of any further obligations under this Agreement, except those that expressly
survive termination of this Agreement. As consideration for Seller's termination of this Agreement, Purchaser shall
provide Seller with a copy of all reports in Purchaser's possession related to Purchaser's inspection of the Property.
Purchaser is responsible and shall pay for any damage which occurs to the Property as a result of Purchaser's
inspections, tests, and investigations of the Property, or as a result of Purchaser's entrance onto the Property.
Purchaser shall indemnify, hold harmless, and defend Seller from any claim, liability, or cost which Seller may incur
or which may be asserted against Seller or the Property by reason of Purchaser's inspections, tests, and investigations
of the Property, or cs a result of Purchaser's entrance onto the Property. The provisions of this Section shall not
be construed to merge with the passage of title to the Property and shall survive closing or other termination of this
Agreement.
(b) Seller has furnished to Purchaser, at Seller's expense, a current commitment for an owner's
standard coverage title insurance policy in an amount equal to the Purchase Price, on May 27, 1997. Purchaser may
require Seller to furnish to Purchaser copies of instruments listed in the schedule of exceptions ("Exceptions") in the
title insurance commitment. This requirement shall pertain only to instruments shown of record in the office of the
clerk and recorder of the designated county or counties. The title insurance commitment, together with any copies
of instruments furnished pursuant to this Section, shall constitute the "Title Documents." Purchaser must request
Seller to furnish copies of instruments listed in the schedule of exceptions no later than seven calendar days after
Purchaser's receipt of the title insurance commitment. Seller will have the title insurance policy delivered to
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Purchaser as soon as practicable after closing. Purchaser shall have the right to inspect the Title Documents. Written
notice by Purchaser of any unsatisfactory title condition shown by the Title Documents shall be signed by Purchaser
and given to Seller on or before seven calendar days after Purchaser's receipt of Title Documents. If Seller does
not receive Purchaser's notice within the seven-day period, Purchaser shall be deemed to have accepted the condition
of title as disclosed by the Title Documents as satisfactory. If written notice of any unsatisfactory title condition,
signed by Purchaser, is given to Seller within the seven-day period, Seller shall use reasonable efforts to correct said
unsatisfactory title condition prior to the date of closing. If Seller fails to correct said unsatisfactory title condition
on or before the date of closing, this Agreement shall terminate, Seller and Purchaser shall be relieved of any further
obligations under this Agreement except those that expressly survive termination of this Agreement, and the Earnest
Money shall be returned to Purchaser; provided, however, Purchaser may, by written notice received by Seller, on
or before the date of closing, waive objection to said unsatisfactory title condition. Purchaser shall pay for any
extended coverage for, or endorsements to, the title insurance policy.
(c) Seller shall furnish to Purchaser and the Title Company, at Seller's expense, a current
improvement and boundary line survey of the Property no less than seven days prior to the Closing Date (as defined
below).
(d) This contract is expressly conditioned upon approval from the City of Greeley of the
subdivision of Seller's property to create the Property. If not so approved by the City of Greeley on or before the
closing date, or any extensions agreed upon between the parties, this contract shall terminate and all Earnest Money
shall be returned to Purchaser.
4. Access and Sewer Line Easement.
Seller acknowledges and agrees that Purchaser requires access to the Property over the entrance road located
on Seller's Property and generally depicted on Exhibit C hereto (the "Access Drive"). Seller further acknowledges
that Purchaser requires an easement for the sewer line, which currently runs from the Property to connection with 7
a line that serves the septic tank ("Sewer Line"). The metes and bounds legal descriptions for the Access Drive art mM
e.9--the-Sewer--Line-will be prepared by Seller prior to Closing. At Closing, Seller and Purchaser shall execute an Access
and Sewer Line Easement in substantially the form of Exhibit D attached hereto, which Access and Sewer Easement
will burden Seller's Property and benefit the Property.
5. Permanent Facilities License.
Purchaser and Seller further acknowledge and agree that Seller shall, after closing, continue to have access
and limited use of the Property for the operation, maintenance and repair of Seller's Facilities currently located on
the Property. At Closing, Purchaser and Seller shall execute a Permanent Facilities License in substantially the form
of Exhibit E, attached hereto, which Permanent Facilities License will burden the Property and benefit the Seller's
Property.
6. Assignment and Assumption of Westlink Agreement.
Seller'5
Purchaser acknowledges and agrees that Purchaser will accept an assignment of, and assume P rrh-.pr's Tn447
obligations under, the Agreement Between U W WEST Communications, Inc., and The Westlink Company, with
an effective date of July 1, 1994, solely with respect to the Property. Therefore, at Closing, Purchaser and Seller
shall execute an Assignment and Assumption of Agreement in substantially the form of Exhibit F attached hereto.
7. Closing and Possession.
The closing of the transaction contemplated by this Agreement (the "Closing") shall take place at
the offices of Weld County Title Company or in such other place which may be mutually agreed to by Seller and
Purchaser on or before June 13, 1997 (the "Closing Date"), at a time mutually agreed to by Purchaser and Seller.
At Closing, (1) Seller shall deliver to Purchaser a duly executed and acknowledged special warranty deed (the
"Deed"), conveying to Purchaser Seller's interest in the Property and shall give possession of the Property to
Purchaser, (2) Purchaser shall deliver to Seller the Cash Payment, and (3) each party shall execute, acknowledge (if
appropriate), and deliver such additional documents, and do such other acts, as may be reasonably required in order
to accomplish the intent and purposes of this Agreement including, but not limited to, the Access and Sewer Line
Easement, the Permanent Facilities License, and the Assignment and Assumption Agreement.
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8. Prorations.
Taxes, utilities, and other charges or items of income shall be prorated at the Closing and shall be final.
Such prorations shall be made on the basis of a 365 -day year, and shall have the effect of increasing or decreasing
the amount of the Cash Payment. Purchaser acknowledges that Seller is a public utility, and that real property taxes
on the Property are currently assessed at the state level. If the amount of taxes and assessments is not known at the
time of closing, they shall be estimated on the basis of the previous year. Seller shall pay the cost of its own
attorneys' fees. Purchaser shall pay any other costs and charges in connection with the closing, including its own
attorneys' fees, any transfer fees, and the cost of recording the Deed. Purchaser shall be responsible for the payment
of any sales or uses taxes payable in connection with the transaction.
9. Disclaimer of Warranties.
SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSO-
EVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSE),
WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES WITH
RESPECT TO THE PROPERTY, THE ZONING OF THE LAND, THE SOIL CONDITIONS OF THE
LAND, THE PRESENCE ON OR BENEATH THE PROPERTY (OR ANY PARCEL IN PROXIMITY TO
THE LAND) OF HAZARDOUS SUBSTANCES OR MATERIALS, OR THE SUITABILITY OF THE
PROPERTY FOR PURCHASER'S INTENDED USE. PURCHASER FURTHER ACKNOWLEDGES THAT
PURCHASER IS PURCHASING THE PROPERTY "AS IS" AND IN ITS PRESENT CONDITION (EXCEPT
WITH RESPECT TO ANY IMPROVEMENTS THAT SELLER MAY BE REQUIRED TO REMOVE
PURSUANT TO THIS AGREEMENT) AND THAT PURCHASER IS NOT RELYING UPON ANY
REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER OR BY SELLER'S AGENTS WITH
RESPECT TO THE PROPERTY. BY ACCEPTANCE OF THIS AGREEMENT AND THE DEED,
PURCHASER ACKNOWLEDGES THAT PURCHASER'S OPPORTUNITY FOR INSPECTION AND
INVESTIGATION OF THE PROPERTY HAS BEEN ADEQUATE TO ENABLE PURCHASER TO MAKE
PURCHASER'S OWN DETERMINATION WITH RESPECT TO THE PROPERTY.
10. Casualty Damage.
In the event that the Improvements should be damaged by any casualty prior to Closing, Seller shall
promptly give Purchaser written notice of such occurrence, and as soon thereafter as practicable, shall provide
Purchaser with an estimate made by an architect, engineer or contractor selected by Seller and approved by Purchaser
(which approval shall not be unreasonably withheld or delayed) of the cost and amount of time required to repair
such damage. If it is so estimated that it will take longer than until the Closing Date to repair such damage and if
neither party terminates this Agreement pursuant to subsection (c) below, then Purchaser shall be given an
opportunity to review and approve any construction contract which Seller proposes to enter into to have such damage
repaired, and Purchaser shall not unreasonably withhold or delay such approval.
If such damage is not "Major Damage," as hereinafter defined, or if the damage is "Major Damage" and
neither Purchaser nor Seller elects to terminate this Agreement pursuant to subsection (c) below, then Seller shall
promptly contract for and commence the repairs and complete so much thereof as may be accomplished prior to the
closing date, all in a manner reasonably satisfactory to Purchaser. In the event such repairs are not completed on
or before the Closing Date, Seller shall either (1) complete such repairs after the Closing Date within a time period
agreed to by Purchaser, or (2) provide Purchaser at the Closing with funds in an amount reasonably determined by
Seller to be sufficient to complete the repairs.
If the estimated cost of such repairs is greater than 5% of the Purchase Price ("Major Damage"), then either
Seller or Purchaser may elect to terminate this Agreement upon written notice to the other within ten days after both
parties' receipt of the estimate. In the event of such termination, the Title Company shall return the Earnest Money
to Purchaser and both parties shall be relieved of any further obligations hereunder, except those that expressly
survive termination of this Agreement; however, if neither party elects to so terminate this Agreement, then this
Agreement shall remain in full force and effect and the parties shall proceed in accordance with subsection (b) above.
11. Condemnation.
(a) If prior to Closing Seller learns of any actual or threatened taking in condemnation or by
eminent domain (or a sale in lieu thereof) of all or any portion of the Property, Seller will notify Purchaser promptly
thereof.
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(b) Other than with respect to an "Immaterial Taking" (as defined below), any actual or
pending taking or condemnation for any public or quasi -public purpose or use by any competent authority in
appropriate proceedings or by any right of eminent domain of all or any part of the Property between the date of
this Agreement and the Closing Date shall, at Purchaser's option, cause a termination of this Agreement. In the
event of such termination, the Title Company shall return the Earnest Money to Purchaser and both parties shall be
relieved of further obligations hereunder, except those that expressly survive termination of this Agreement. The
election to terminate provided hereby must be exercised by Purchaser (or will be deemed to have been waived) by
notice to Seller to that effect given within 15 days following Purchaser's receipt of Seller's notice of the taking.
If Purchaser shall not elect to so terminate this Agreement, or in the event of an Immaterial Taking, Seller shall be
relieved of all obligations under this Agreement with respect to the portion of the Property so taken or condemned,
but Purchaser will be entitled to receive all proceeds of any such taking or condemnation, and Seller agrees that it
will not make any adjustment or settlement of any such taking or condemnation proceeding without Purchaser's
consent and will take at Closing all action necessary to assign its entire interest in such award to Purchaser. Any
taking or condemnation for any public or quasi -public purpose or use which does not affect access, reduce parking
or take any part of the Improvements shall be deemed an "Immaterial Taking."
12. Representation.
The listing broker, Austin & Austin Real Estate, a sales agent for CB Commercial Real Estate Group, Inc.
(collectively, the "Listing Company") represents Seller. The Listing Company owes duties of trust, loyalty, and
confidence to Seller only. While the Listing Company has a duty to treat Purchaser honestly, the Listing Company
is Seller's agent and is acting on behalf of Seller and not Purchaser. BY SIGNING THIS AGREEMENT,
PURCHASER ACKNOWLEDGES PRIOR TIMELY NOTICE BY THE LISTING COMPANY THAT THE
LISTING COMPANY IS SELLER'S AGENT.
13. Time of Essence and Remedies.
Time is of the essence of this Agreement. If the Earnest Money or any other payment due under this
Agreement is not paid, honored, or tendered when due, or if any other obligation under this Agreement is not
performed or waived as provided in this Agreement, there shall be the following remedies:
(a) If Purchaser is in default, Seller shall have the option to either: (I) treat this Agreement
as canceled, in which case the Earnest Money shall be forfeited by Purchaser and retained on behalf of Seller, and
Seller may recover such damages as may be proper; or (2) Seller may elect to treat this Agreement as being in full
force and effect and Seller shall have the right of specific performance and damages.
(b) If Seller is in default, then Purchaser shall have the option of either: (1) demanding the
return of the Earnest Money, and upon such return both parties shall be released from all obligations under this
Agreement, except those that expressly survive termination of this Agreement; or (2) treating this Agreement as being
in full force and effect and enforcing the right of specific performance. Purchaser shall have no right to monetary
damages.
(c) Anything herein to the contrary notwithstanding, in the event of any litigation or arbitration
arising out of this Agreement, the prevailing party shall be awarded all reasonable costs and expenses, including
attorneys' fees.
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14. Notices.
(a) All notices permitted or required pursuant to this Agreement shall be in writing and shall
be either (1) hand -delivered, (2) deposited with a nationally recognized overnight delivery service, or (3) deposited
with the United States Post Office, certified mail, return receipt requested, postage prepaid. All notices shall be
deemed to have been served when actually received, or upon refusal of delivery. All notices shall be addressed to
the parties to whom such notices are intended as set forth below:
1. If to Seller: U S WEST Business Resources, Inc.
3640 E. Indian School Road, Room 300
Phoenix, AZ 85018
Attn: PSL Real Estate Manager
(602) 952-0557
with copies to:
Fisher & Sweetbaum
1331 Seventeenth Street, Suite 1000
Denver, CO 80202
2. If to Purchaser: Weld County
915 10th Street
Greeley, CO 80631
Attn: Bruce Barker, Esq.
(970) 356-4000
3. If to Broker: CB Commercial Real Estate Group, Inc.
7979 E. Tufts Avenue Parkway, Suite 600
Denver, CO 80237
Attn: Jim Ranson
(303) 740-4800
(b) Either party may change its address by giving notice to the other in accordance with this
Section
14. Recommendation of Legal Counsel.
This is a legal instrument. It is recommended that Purchaser obtain the advice of legal counsel regarding
this Agreement.
15. Miscellaneous.
(a) This Agreement is the entire agreement between Purchaser and Seller with respect to the
Property and supersedes any and all other prior agreements and understandings, whether written or oral, formal or
informal. If any provision of this Agreement proves to be illegal or unenforceable, the remainder of this Agreement
shall not be affected, and in lieu of the illegal or unenforceable provision, a provision shall be added as a part of this
Agreement as similar in terms as the illegal or unenforceable provision as may be possible and be legal and
enforceable.
(b) This Agreement shall be governed by the internal laws of the state in which the Property
is located, without reference to its conflict of law provisions.
(c) This Agreement may be amended, modified, or terminated only by a written instrument
executed by Seller and Purchaser. No right under this Agreement may be waived, except by written instrument
executed by the party who is waiving such right. The waiver by either party of any right or agreement in this
Agreement shall not be deemed a waiver of any subsequent breach of the same or any other right or agreement
contained in this Agreement.
(d) This Agreement shall be binding upon, and inure to the benefit of, Purchaser and Seller
and their successors, heirs, administrators, and assigns. Purchaser may not assign its interest in this Agreement
without Seller's written consent.
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(e) Any claim, controversy or dispute arising out of this Agreement shall be settled by
arbitration in accordance with the applicable rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be
conducted in the county where the Property is located. There shall be no discovery other than the exchange of
information which is provided to the arbitrator by the parties. The arbitrator shall have authority only to award
equitable relief and compensatory damages, and shall not have authority to award punitive damages or other
noncompensatory damages; the parties hereby waive all rights to and claims for monetary awards other than
compensatory damages.
(f) If either party (the "Exchanging Party") hereto desires to involve the Property in a tax -
deferred exchange under the provisions of Section 1031 of the Internal Revenue Code ("Exchange"), the other party
(the "Non -Exchanging Party") agrees to cooperate with the Exchanging Party in the Exchange. Such cooperation
may include the involvement of a qualified intermediary and the execution by the Non -Exchanging Party of
documents and instruments deemed reasonably necessary by the Exchanging Party in order to effect the Exchange.
The Exchanging Party agrees to be liable and to pay for all costs that may be incurred by the Non -Exchanging Party,
including the Non -Exchanging Party's attorneys' fees and other similar or dissimilar costs so incurred. The
Exchanging Party shall indemnify the Non -Exchanging Party against any and all liability or other obligation that may
arise in connection with such cooperation. The Non -Exchanging Party shall not be required to accept title to any
exchange property.
Purchaser and Seller have executed this Agreement as of the day and year first written above.
SELLER: PURCHASER:
U S WEST Communications, Inc.,
a Colorado corporation, formerly known
as The Mountain States Telephone and
Telegraph Company
By: /110.4,r) Yxtic Clliu(FL
Name: {ittft,1yVUf)7e
Its: Attorney -in -Fact
APPROVED AS TO LEGAL FORM
IYla4a� l7 cJc-
By
Date
(0/3/5
ATTACHMENTS TO THIS AGREEMENT:
County of Weld, a Political Subdivision of the State of a
Colorado
By:
Na e: Geo ge E. Baxter
Title: Chairman, Board of County Commissioners, Weld
County
Exhibit A - General Location of Subject Property
Exhibit B - Legal Description of Subject Property
Exhibit C - General Location of Access Road
Exhibit D - Access and Sewer Line Easement
Exhibit E - Permanent Facilities License
Exhibit F - Assignment and Assumption of Agreement
Attachment #1 - Facilities
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Attachment #1
(to Greeley Purchase and Sale Agreement)
1. The equipment owned by Seller that is in the Building and generally located in the area
identified on the attached Exhibit 1 as the "USW Radio, Motorola Mod." ; and
2. The Antenna located on the Tower and generally described and depicted on the attached
Exhibit 2; and
3. Any and all removable personal property owned by the Seller and located in the Building,
together with any and all fixtures located in the Building which are necessary to the Seller's
operation of the Licensee's Facilities (as defined in the form of Permanent Facilities License
Agreement attached to this Commercial Real Estate Sales Agreement ("Sales Agreement"); and
4. Any property and equipment owned by the Westink Company and located in the Building
or on the Tower pursuant to the Westlink Agreement described in Section 6 of the Sales
Agreement.
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970828
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EXHIBIT #1
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U 5 BEST COPI9.NICRTICP6, INC.
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STATION *110714 - GREELEY. COLORADO
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GROUND ELEVATION 4858' R1SL
LRTITUIE: 40-23-I0
LONGITUDE: 104-44-11 BNEDLLND 4,14/97
970925
** TOTAL PAGE.02 **
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Exhibit B
PARCEL 3
That portion of the Northeast Quarter of Section 23, Township 5
North, Range 66 West of the 6th P.M., City of Greeley, County of
Weld, State of Colorado, more particularly described as follows:
Considering the East line of the Northeast Quarter of Section
23, Township 5 North, Range 66 West of the 6th P.M., as
monumented by a 3/4" rebar with a 3 1/4" diameter aluminum cap,
P.L.S. 23513, at the Northeast corner of said Section 23, and by
a 3/4" X 30" rebar with a 3 1/4" diameter aluminum cap, P.L.S.
10855 at the East Quarter corner of said Section 23, to bear a
record bearing of South 00'59'40" East, with all bearings hereon
relative thereto.
Beginning at the Northeast corner of said Section 23; thence
along the East line of the Northeast Quarter of said Section 23
South 00'59'40" East 1813.92 feet; thence continuing South
00'59'40" East 279.81 feet; thence South 89'03'02" West 222.81
feet to the beginning of a curve to the left, having a central
angle of 89'38 38" and a radius of 18.00 feet, the chord of said
curve bears South 44'13'43" West 25.38 feet; thence
Southwesterly along the arc of said curve 28.16 feet; thence
South 00'35'36" East 3.33 feet; thence South 89'24'24" West
148.40 feet; thence North 11'31'10" West 20.60 feet; thence
South 89'16'36" West 173.03 feet to the TRUE POINT OF BEGINNING;
thence South 00'32'11" East 192.89 feet; thence South 89'21'23"
West 215.49 feet; thence North 00'34'32" West 173.52 feet;
thence North 77'15'00" East 57.51 feet; thence North 33'26'00"
East 36.41 feet; thence North 89'32'49" East 139.06 feet; thence
South 00'32'11" East 22.38 feet more or less to the TRUE POINT
OF BEGINNING.
The above described parcel contains a gross acreage of 1.01
acres (44130 s.f.±) more or less.
970823
Exhibit C
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EXHIBIT D
GRANT OF EASEMENT
AND MAINTENANCE AGREEMENT
(Access and Sewer Line Easement)
This Grant of Easement (this "Grant") is made this day of , 1997,
by U S WEST Communications, Inc., a Colorado corporation, whose address is 1005 17th
Street, Room 1550, Denver, Colorado 80202 ("Grantor"), to the Board of County
Commissioners for Weld County, a Political Subdivision of the State of Colorado ("Grantee"),
whose address is 915 10th Street, P.O. Box 758, Greeley, Colorado 80632.
The parties covenant and agree as follows:
1. Easement Property. The "Access Easement Property" shall mean the real property
located in the City of Greeley, County of Weld, State of Colorado, more particularly described
on Exhibit A attached hereto, and as depicted as the "Access Drive" on Exhibit A-1 attached
hereto, which real property is owned by Grantor. The "Sewer Line Easement Property" shall
mean the real property under which is located the sewer line from the building on Grantee's
Property to the Septic Tank Facilities (as hereinafter defined) (the "Sewer Line"). (Together, the
Access Drive Easement Property and the Sewer Line Easement Property may collectively be
referred to herein as the "Easement Property.")
2. Consideration. Grantor makes this Grant in and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged.
3. Grant of Rights to Use Easements. Grantor hereby grants to Grantee a non-
exclusive easement over the Access Easement Property for pedestrian and vehicular access to
Grantee's property described on Exhibit C attached hereto and incorporated herein by this
reference ("Grantee's Property"). Grantor further grants to Grantee a non-exclusive easement
under and through the Sewer Line Easement Property for the installation, maintenance,
replacement, removal and repair of the underground sewer line located therein, together with all
necessary or desirable underground facilities and appurtenances for Grantee's operation of the
Sewer Line. Except to the extent necessary, the Sewer Line and all related facilities, shall be
constructed, kept and maintained underground.
4. Maintenance of the Access Drive. Except as provided in subparagraphs (a) through
(c) below, Grantor shall maintain the Access Drive at Grantor's cost and expense.
Notwithstanding the foregoing:
(a) To the extent that Grantee's use of Grantee's Property or the Access Drive
is the primary cause of damage to the Access Drive necessitating repair, Grantee shall be solely
responsible for the costs to repair such damage.
(b) Grantee further shall be solely responsible for all costs of any improvements
to the Access Drive, the public right of way adjacent to the Access Drive, or Grantor's property
required by any governmental authority or agency as a result of Grantee's development of and
use of Grantee's Property and Grantee's use of the Access Drive pursuant to this Grant.
(c) In the event the Permanent Facilities License between Grantor and Grantee
of even date herewith is terminated at a future date, or Grantor commences to pay rent for its use
of Grantee's Property pursuant to the terms of the Permanent Facilities License, then the parties
shall execute a separate agreement, effective the date of the termination of the Permanent
MMTN100-482 052197 U0482Sew.O
970828
Facilities License or the date on which Grantor commences to pay rent for its use of Grantee's
Property thereunder, as the case may be, pursuant to which separate agreement Grantee shall be
responsible for 50% of the costs for maintenance and repair to the Access Drive (the
"Maintenance Reimbursement") on an annual basis and renewable from year to year (provided,
however, that in the event Grantee is already paying its Proportionate Share Maintenance
Reimbursement pursuant to Article 7 below, and such Proportionate Share Maintenance
Reimbursement is greater than 50% of the Maintenance Costs, Grantee shall pay such larger
amount as previously has been established pursuant to Article 7 below), which costs shall include,
but are not limited to, paving and repaving, resurfacing, signage, snow and debris removal, and
repair and maintenance of the drainage from the Access Drive (the "Maintenance Costs"). (Upon
Grantee's reasonable request, Grantor shall also make available to Grantee copies of supporting
invoices for any Maintenance Reimbursement.) Any Maintenance Reimbursement shall be due
30 days from the date of Grantor's invoice. Notwithstanding anything stated herein to the
contrary, the Maintenance Reimbursement provisions shall be subject to the requirements of
Article 10, Section 20, of the Constitution for the State of Colorado and any statutory
requirements in compliance therewith.
5. Maintenance of the Sewer Line. Grantee agrees that after Grantee's construction,
if applicable, and after any maintenance, repair, replacement or removal of the Sewer Line,
Grantee shall restore the surface of the Sewer Line Easement Property, as nearly as reasonably
possible, to the grade and condition it was in immediately prior to said construction, maintenance,
repair, replacement or removal, except as may be necessary to accommodate the Sewer Line.
Grantee further agrees not to deposit, nor permit anything to be deposited in the Sewer Line in
violation of any laws, regulations or ordinances, nor which would damage or negatively affect
Grantor's Sewer Line, nor Grantor's Septic Tank Facilities located on property adjacent to both
Grantee's Property and Grantor's Property, and which are more particularly described in the
Grant of Easement dated March 11, 1996 recorded in the records of the Weld County Clerk and
Recorder in Book 1537 at Page 17 (the "Sheel Easement"). Grantee further covenants and agrees,
for itself, its successors and assigns, to comply with the Sheel Easement. Finally, unless the
Sewer Line Easement is terminated pursuant to paragraph 7(a) below, Grantee shall reimburse
Grantor for 25% of all costs Grantor incurs for maintenance and repair of the Septic Tank (the
"Septic Tank Maintenance Costs"). Grantee shall deliver any reimbursement amounts to Grantor
within 30 days from the date of Grantor's invoice for Septic Tank Maintenance Costs.
6. Retained Rights of Grantor. Grantor reserves the right of ownership, use and
occupancy of the Easement Property insofar as said ownership, use and occupancy does not
impair the rights granted to Grantee in this Grant.
7. Change in Use or Development of Grantee's Property.
(a) In the event that Grantee constructs additional improvements on the
Grantee's Property and/or changes the current use of Grantee's Property to a use that is other than
a communications facility, and such improvements or change in use results in more than a 20%
increase in the amount of sewage deposited through the sewer line into Grantor's Septic Tank
Facilities (as defined in the Sheel Easement), then upon written notice from Grantor, Grantee's
rights under this Grant to use the Sewer Line shall immediately cease and terminate and title to
this Grant with respect to the Sewer Line shall automatically revert to and immediately revest in
Grantor, its successors or assigns, without the necessity of any further action.
(b) In the event that Grantee constructs additional improvements on the
Grantee's Property and/or changes the current use of Grantee's Property to a use that is other than
a communications facility, and such improvements or change in use results in more than a 20%
MMT/U100-482 052197
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U0482Sew.Dc629 O828
increase in the number of vehicle trips on and over the Access Drive, then the parties shall
execute a separate agreement, pursuant to which separate agreement Grantee shall be responsible
for Grantee's proportionate share of all of the Maintenance Costs (the "Proportionate Share
Maintenance Reimbursement") for the Access Drive on an annual basis and renewable from year
to year. Upon Grantee's reasonable request, Grantor shall also make available to Grantee copies
of supporting invoices for any Proportionate Share Maintenance Reimbursement.) My
Proportionate Share Maintenance Reimbursement shall be due 30 days from the date of Grantor's
invoice. Notwithstanding anything stated herein to the contrary, the Proportionate Share
Maintenance Reimbursement provisions shall be subject to the requirements of Article 10, Section
20, of the Constitution for the State of Colorado and any statutory requirements in compliance
therewith.
8. Insurance; Permits. Grantee shall maintain Comprehensive General Liability
Insurance covering its obligations to Grantor under this Grant with liability limits and coverages
satisfactory to Grantor. Such insurance shall name the Grantor as additional insured, and a
Certificate of Insurance evidencing such coverage shall be provided to Grantor annually within
30 days after the anniversary of this Grant. Grantee may satisfy its obligations under this
paragraph 7 through a program of self-insurance.
9. Indemnity. To the extent permitted by law, Grantee shall indemnify, defend and
hold Grantor harmless from and against any liability, claims, damage, cost or expense which may
result from Grantee's use and enjoyment of the Easement Property, or the failure of Grantee to
comply with the terms of this Grant, except to the extent such claims arise from the negligent acts
or omissions of Grantor, its officers, agents, employees, licenses or invitees.
10. Abandonment. In the event that Grantee shall abandon the rights granted to it
under this Grant with respect to either the Access Drive Easement or the Sewer Line Easement,
all right, title, and interest hereunder of Grantee concerning the respective easement shall cease
and terminate, and Grantor shall hold the respective Easement Property, as the same may then
be, free from the rights of Grantee so abandoned. Failure to use the Access Drive or the Sewer
Line for a period of two years or more shall constitute evidence of abandonment
11. Disputes. Any claim, controversy or dispute, whether sounding in contract, statute,
tort, fraud, misrepresentation, or other legal theory, related directly or indirectly to this Grant
shall be resolved by arbitration in accordance with the applicable rules of the American
Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof. The arbitration shall be conducted in the county in
which the Easement Property is located. There shall be no discovery other than the exchange of
information which is provided to the arbitrator by the parties. The arbitrator shall have the
authority only to award compensatory damages or equitable relief, and shall have no authority
to award punitive damages or non -compensatory damages.
12. Binding Effect. This Grant shall extend to and be binding upon the successors and
assigns of the respective parties hereto. The terms, covenants, agreements and conditions in this
Grant shall be construed as covenants running with the land.
13. Applicable Law. This Grant of Easement shall be interpreted and enforced
according to the laws of the State of Colorado.
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U0482Sew.DcG r.I
IN WITNESS WHEREOF, the parties hereto have executed this Grant of Easement the
day and year first above written.
GRANTOR:
U S WEST Communications, Inc., a
Colorado corporation
By
Name
Its Attorney -in -Fact
Approved as to Legal Form by counsel
to Grantor:
Fisher & Sweetbaum, P.C.
By
Date
ACCEPTED BY:
GRANTEE:
Board of County Commissioners for the
County of Weld, a Political Subdivision of
the State of Colorado
By
Name
Title
ATTEST:
By
Clerk to the Board of County
Commissioners for the County of
Weld
MMTN100-482 052197
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U0482Sew.DenI(31325
STATE OF
) ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of
1997, by as of the County
of Weld, a Political Subdivision of the State of Colorado.
WITNESS my hand and official seal.
Notary Public
My commission expires
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
19_, by as Attorney -in -Fact for U S WEST
Communications, Inc., a Colorado corporation.
Witness my hand and official seal.
Notary Public
My commission expires:
MM AJ100-482 052197
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970823
U0482Sew.Dc6Z
EXHIBIT E
PERMANENT FACILITIES LICENSE AGREEMENT
(Weld County, Colorado)
This Permanent Facilities License Agreement ("License") is made and entered into this
day of , 1997, by and between the Board of County Commissioners
for the County of Weld, a Political Subdivision of the State of Colorado ("Licensor"), whose
address is 915 10th Street, P.O. Box 758, Greeley, Colorado 80632, and U S WEST
Communications, Inc., a Colorado corporation ("Licensee"), whose address is
Recitals
A. Immediately preceding the execution of this License, Licensee has conveyed to
Licensor the real property located at 3101 35th Avenue, Greeley, Colorado 80634, and more
particularly described on Exhibit A attached hereto ("the Property").
B. Licensee previously has placed communications facilities on the Property,
including, but not limited to, antennae on the tower located on the Property (the "Tower"), as
well as antennae, radio equipment, and a radio base station in the building located on the Property
(the "Building"), and Licensee intends to place an antenna at the 70 -foot level of the Tower,
together with related equipment in a building or cabinet to be constructed by Licensee at the base
of the Tower (the "P.C.S. Tower Equipment") (together, the P.C.S.Tower Equipment, antenna,
radio base station, and equipment shall herein be referred to as the "Facilities"), and Licensor has
agreed to allow Licensee to install and continue to operate the Facilities on the Property.
Licensee has also agreed to permit Licensor to access the Property to, among other things, store
other Facilities -related equipment and hardware as well as to use the Tower not only for the
placement of Licensee's existing tower antennae, but also to enable Licensee's agents and
employees to practice climbing and repair -related skills ("Tower Practice").
C. Licensee has requested, and Licensor has agreed to provide to Licensee, a license
for the installation, maintenance, repair, replacement and removal of the Facilities as well as
access to the Facilities, into and through the Property.
Agreement
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. License Agreement. Licensor hereby grants and conveys to Licensee, subject to
the provisions hereof, (a) a non-exclusive license and right of way into and through the Property
to access the Licensee's Facilities thereon; (b) an exclusive license at the 70 -foot level of the
Tower, together with a license at the base of the Tower, for the purpose of constructing,
operating, maintaining, repairing, removing, and replacing the P.C.S. Tower Equipment; (c) an
exclusive license for the purpose of constructing, operating, maintaining, repairing, removing, and
replacing the Facilities; (d) a license to store Licensee's equipment and hardware on the Property
in a location reasonably acceptable to Licensor; and (e) a license on the Tower to enable
Licensee's agents and employees to conduct Tower Practice.
940S28
MMTN100-482 052197 U0482Lic.Oc6O
2. Electrical Service. Licensor and Licensee acknowledge and agree that, prior to the
date of this License, the cost for electrical service to Licensee's Facilities has been
$ per month (the "Base Electrical Service Costs"). Licensee will pay Licensor
the Base Electrical Service Costs each month. In the event that there is a rate increase for
electrical service to the Property, Licensee will pay to Licensor an amount each month equal to
the Base Electrical Service Costs multiplied by the percentage increase in the electrical service
charges charged by the electrical service provider. [By way of illustration only, if the Base
Electrical Service Costs are currently based on charges of $ per kilowatt (Cost A), and there
is a rate increase such that the cost of electrical service is $ per kilowatt (Cost B), then
Licensee shall pay (1) the Base Electrical Service Costs, plus (2) an amount equal to the Base
Electrical Service Costs multiplied by the percentage difference between Cost A and Cost B.]
Licensee shall have the right, at Licensee's expense, to install a submeter for the electrical service
to all of Licensee's Facilities. Licensee further shall install a separate meter for the electrical
service to the P.C.S. Tower Equipment.
3. Term.
(a) The term of this License shall be perpetual, subject to Licensor's and
Licensee's right to terminate as set forth below. Licensor may only terminate this License (1)
in the event that Licensor, or its successors or assigns, ceases to use the Property for the operation
of communications facilities and such new use of the Property would be incompatible with
Licensee's use of the Property as set forth in this License and Licensee does not exercise its right
to either purchase the Property or pay rent for Licensee's use of the Property pursuant to
subparagraph (b) below; or (2) in the event that Licensee is in default of this License and
Licensor obtains a decision from an arbitrator pursuant to the provisions of Section 13 of this
License permitting Licensor to terminate this License. Licensee may terminate this License at
any time by providing Licensor with 30 days' prior written notice of termination. In the event
of termination pursuant to this Section 3, Licensee will remove the Facilities from the Property
and restore the Property directly affected by Licensee's Facilities, as nearly as is reasonably
practicable, to its condition as of the date of this License.
(b) In the event that Licensor, or its successors or assigns, ceases to use the
Property for the operation of communications facilities and any such new use of the Property is
incompatible with Licensee's use of the Property pursuant to this License, then Licensee shall
have the right, but not the obligation, at Licensee's option, to either (1) purchase the Property at
the then fair market value of the Property as determined by an independent MAI certified real
estate appraiser with substantial experience in appraising properties in Weld County, Colorado,
or (2) pay Licensor, its successors or assigns, rent for all of Licensor's Property described in this
License at then "prevailing market rate for the Premises" (as defined in subparagraph (e) below).
Licensor shall provide Licensee with notice of the change in use of the Property ("Licensor's
Notice"), and Licensee shall have 12 months from the date of Licensor's Notice to either (A)
purchase the Property pursuant to this subparagraph (b), or (B) notify Licensor that it intends to
pay rent for its use of all of Licensor's Property described in this License and to commence
paying Licensor rent therefore. If Licensee does not elect either to purchase the Property or to
pay rent for the Property pursuant to this subparagraph (b), then this License shall terminate 12
months from the date of Licensor's Notice.
(c) In the event that the Tower or the Building are damaged to the extent that
Licensor, in its reasonable judgment, decides not to repair the damage, and subject to the other
stated provisions of this Section 3, Licensee shall have the right, but not the obligation, at
Licensee's expense, to rebuild or reconstruct the Tower and/or the Building, as the case may be,
MMT/U100-482 052197
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970828
U0482Lic.Oc6Q
(but only to the extent as Licensee, in its reasonable judgment, determines is necessary for the
operation of its Facilities), and to continue to use the Property for its Facilities pursuant to this
License.
(d) In the event that Licensor conveys the Property to an unrelated third party
(i.e., an entity that is not controlled by, controls, or is under common control with Licensor) (a
"Purchaser"), and the Purchaser's use of the Property is not incompatible with Licensee's use of
the Property pursuant to this License, then this License shall not terminate; however, Licensee
shall pay the owner of the Property rent for its proportionate use of the Property pursuant to this
License, which rent shall be a proportionate share (based on the Licensee's actual use of the
Property) of the then "prevailing market rate of the Premises" (as defined below).
(e) The "prevailing market rate of the Premises" means what a landlord under
no unusual compulsion to lease the Property and a tenant under no unusual compulsion to lease
the Property would determine as rent, taking into consideration the uses permitted under this
License; the quality, size, design, and location of the Property; and the rent for comparable
properties located in Greeley, Colorado.
4. No Interference with Licensor's Operations. Licensee shall operate the Facilities
and conduct Tower Practice in such a manner that it will not interfere with the operations of
Licensor on the Property. In the event Licensor should find that there is interference with the
efficient operation of its communications facilities on the Property solely because of Licensee's
use of the Property, Licensee shall be responsible for removing the cause of such interference
within a reasonable period of time, not to exceed 30 days, after Licensee's receipt of notice of
such interference from Licensor; provided, however that Licensee may extend such 30 -day period
if such interference cannot be removed within 30 days and Licensee is diligently proceeding with
removing the interference. In the event that Licensee fails to remove the interference pursuant
to this Section 4, Licensor may remove the interference and charge Licensor for the costs
Licensor actually incurred to remove the interference. Licensee shall maintain its Facilities in
compliance with all applicable laws.
5. Licensor's Right to Relocate Facilities in the Building/Licensor's Repairs. It is
understood and agreed by the parties that the purpose and intent of this License is to grant to
Licensee a license for the Facilities, even though Licensor's development plans for the Property
are or may not yet be finalized. Accordingly, the parties agree that Licensor, at Licensor's sole
cost and expense, shall have the right to relocate only Licensee's Facilities that are currently
located in the Building to another similarly sized location in the same Building (the "Relocation
Space"), subject to Licensee's reasonable approval as to the size and location of, as well as the
availability of access to, the Relocation Space. In the event that any repair, replacement,
alteration, or improvement contemplated by Licensor may result in interference with Licensee's
Facilities or its use and operation of such Facilities, Licensor will provide Licensee with not less
than 30 days' prior written notice of Licensor's plans to conduct such repair or maintenance
activities, and to the extent reasonably possible, shall make reasonable accommodations to allow
Licensee to continue to use the Property for the operation of its Facilities during the time in
which Licensor is conducting its repair or maintenance activities on the Property.
7. Waiver and Release. Except to the extent caused by the Licensor's gross
negligence or intentional misconduct, Licensee waives and releases Licensor, its employees, and
agents from all claims for any loss, injury, death, or damage to persons, property, or to Licensee's
business occasioned by theft, act of God, public enemy, injunction, riot, strike, insurrection, wars,
court order, requisition, order of governmental body or authority, fire, explosion, falling objects,
MMTN700-482 052197
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97082.5
U0482L,t.Dc6Q
steam, rain, snow, water, leak or flow of water, rain or snow from the Property or into the
Building, or from any other place, or from breakage, leakage, obstruction, or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning, or lighting fixtures of the
Building, or from construction, repair or alteration of the Building or Property, or from any cause
beyond Licensor's reasonable control.
6. Environmental Obligations.
(a) Licensee will be solely responsible for and will defend, indemnify and hold
Licensor, its agents, and employees harmless from and against any and all direct claims, costs,
and liabilities, including reasonable attorneys' fees and costs, arising out of or in connection with
Licensee's introduction of Hazardous Materials to the Property.
(b) Licensor will be solely responsible for and will defend, indemnify, and hold
Licensee, its agents, and employees harmless from and against all claims, costs, and liabilities,
including reasonable attorneys' fees and costs, rising out of or in connection with the removal,
cleanup, or restoration of the Property with respect to Hazardous Materials from all sources other
than those Hazardous Materials introduced to the Property by Licensee.
(c) For purposes of this Section 6, "Hazardous Materials" means asbestos,
explosives, radioactive materials, hazardous waste, hazardous substances, or hazardous materials
including, without limitation, substances defined as "hazardous substances" in the Comprehensive
Environmental Response Compensation Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-
9657 ("CERCLA"); the Hazardous Material Transportation Act of 1975, 49 U.S.C. §§ 1801-1812;
the Resource Conservation Recovery Acts of 1976, 42 U.S.C. §§ 6901-6987; the Occupational
Safety And Health Act of 1970, 29 U.S.C. §§ 651, et seq.; or any other federal, state, or local
statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning hazardous materials, wastes or substances now or at
any time hereinafter in effect (collectively, "Environmental Laws"). "Hazardous Waste" means
hazardous waste as defined under the Resource Conservation Recovery Act of 1976, 42 U.S.C.
§§ 6901-6987.
7. Indemnification. Licensee shall indemnify, defend and hold harmless Licensor
from and against any and all liabilities, suits, judgments, claims, costs and expenses (including
without limitation, reasonable attorneys' fees) arising from claims relating to the use of the
license granted herein by Licensee, its agents, employees, and contractors, except to the extent
such claims arise from the negligent acts or omissions of Licensor, its officers, agents, employees,
licensees, or invitees.
8. Continuous Access to the Building. Licensor shall provide Licensee a key and any
access cards necessary to gain access to the Building located on the Property in which a portion
of the Facilities are located.
9. Successors and Assigns. Subject to the terms of this License, this License shall
inure to the benefit of and shall be binding upon the successors and assigns of the parties hereto.
10. No Other Agreements. The agreement is the entire understanding of the parties
hereto with respect to the subject matter hereof
11. Governing Law. This agreement shall be governed by the laws of the State of
Colorado.
MMTN700-482 052197
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U0482Lic.Dc6Q
970828
12. Notices. Any notice or other communication required or permitted under this
License must be in writing and will be deemed to have been given when personally delivered,
deposited with any nationally recognized overnight carrier that routinely issues receipts, or
deposited with the United States Postal Service, postage prepaid, certified mail, return receipt
requested, addressed to the party for whom it is intended at its address set forth at the beginning
of this License. Either Licensor or Licensee may add additional addresses or change its address
for purposes of receipt of any such communication by giving 10 days' prior written notice of
such change to the other party in the manner prescribed in this section.
13. Disputes.
(a) Any claim, controversy or dispute, whether sounding in contract, statute,
tort, fraud, misrepresentation or other legal theory, related directly or indirectly to this License,
whenever brought and whether between the parties to this License or between one of the parties
to this License and the employees, agents or affiliated businesses of the other party, shall be
resolved by arbitration as prescribed in this section. The Federal Arbitration Act, 9 U.S.C. §§
1-15, not state law, shall govern the arbitrability of all claims.
(b) A single arbitrator engaged in the practice of law who is knowledgeable
about the subject matter of this License shall conduct the arbitration under the then current rules
of the American Arbitration Association (the "AAA"). The arbitrator shall be selected in
accordance with AAA procedures from a list of qualified people maintained by the AAA. The
arbitration shall be conducted in the regional AAA office closest to where the claim arose, and
all expedited procedures prescribed by the AAA rules shall apply.
(c) There shall be no discovery other than the exchange of information which
is provided to the arbitrator by the parties. The arbitrator shall not have authority to award
punitive damages, but may award compensatory damages or equitable relief; the parties hereby
waive all rights to and claims for monetary awards other than compensatory damages or equitable
relief Each party shall bear its own costs and attorneys' fees, and the parties shall share equally
the fees and expenses of the arbitrator. The arbitrator's decision and award shall be final and
binding, and judgment enforcing the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof
(d) If any party files a judicial or administrative action asserting claims subject
to arbitration as prescribed herein, and another party successfully stays such action or compels
arbitration of said claims, the party filing said action shall pay the other party's costs and
expenses incurred in seeking such stay or compelling arbitration, including reasonable attorneys'
fees.
14. Recording. This License shall be recorded in the records of the Clerk and
Recorder of Weld County, Colorado.
MMTN100-482 052197
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u048uic.0c5Q Gt4��
IN WITNESS WHEREOF, Licensor and Licensee have executed this License as of the
day and year first written above.
LICENSOR:
Board of County Commissioners for the
County of Weld, a Political Subdivision of
the State of Colorado
By
Name
Title
ATTEST:
By
Clerk to the Board of County
Commissioners for the County
of Weld
LICENSEE:
U S WEST Communications, Inc., a
Colorado corporation
By
Name
Title
APPROVED AS TO FORM by counsel to Licensee:
Fisher & Sweetbaum, P.C.
By
Date
MMTN700-482 052197
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9 08zs
U0482Lic.Dc6Q
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of
1997, by as of the County
of Weld, a Political Subdivision of the State of Colorado.
WITNESS my hand and official seal.
Notary Public
My commission expires
STATE OF COLORADO
COUNTY OF
)
)
)
ss.
The foregoing instrument was acknowledged before me this day of
1997, by as of
U S WEST Communications, Inc., a Colorado corporation.
WITNESS my hand and official seal.
Notary Public
My commission expires
MMTN100-482 052197
-7-
970029
U0482Lic.Dc6Q
EXHIBIT F
PARTIAL ASSIGNMENT AND ASSUMPTION OF AGREEMENT
THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF AGREEMENT (this
"Assignment") is made and entered into as of June _ , 1997, by and between US WEST
Communications, Inc., a Colorado corporation ("Assignor") and Weld County, a Political
Subdivision of the State of Colorado ("Assignee").
Recitals
A. Pursuant to a the Commercial Real Estate Sales Agreement dated June 3, 1997,
by and between Assignor and Assignee (the "Agreement"), Assignor has conveyed to Assignee
the real property and improvements described on Exhibit A hereto (the "Property") as of the date
hereof.
B. The Real Property is subject to an Agreement Between U S WEST
Communications, Inc. And The Westlink Company with an effective date of July 1, 1994, a copy
of which is attached to this Assignment (the "Agreement"), pursuant to which Agreement
Westlink has installed and maintains paging equipment on the Property, as well as other
properties owned by Assignor.
C. Pursuant to the Agreement and in connection with the conveyance of the Real
Property, Assignor has agreed to assign to Assignee Assignor's right, title, and interest in and to
its interest under the Agreement with respect, and solely with respect to, the Property, and
Assignee has agreed to assume and perform all of Assignor's liabilities and obligations arising
under the Agreement with respect to the Property on and after the date hereof.
Assignment
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignor hereby assigns, transfers, and conveys to Assignee Assignor's right, title,
and interest in and to its interest under the Agreement with respect to, and solely with respect
to, the Property.
2. Assignor shall indemnify, defend with counsel reasonably acceptable to Assignee,
and hold Assignee harmless from any claim, liability, cost, or expense (including, without
limitation, reasonable attorneys' fees) arising out of any obligation or liability of USWC (as
defined in the Agreement) under the Agreement and solely with respect to the Property which
were to be performed or which became due prior to the date hereof.
3. Assignee hereby assumes all liabilities and obligations of Assignor under the
Agreement with respect to the Property, and agrees to perform all obligations of Assignor under
the Agreement with respect to the Property which are to be performed or which become due on
or after the date hereof.
4. To the extent permitted by law, Assignee shall indemnify, defend with counsel
reasonably acceptable to Assignor, and hold Assignor harmless from any claim, liability, cost, or
expense (including, without limitation, reasonable attorneys' fees) arising out of any obligation
or liability of USWC under the Agreement with respect to the Property which are to be
performed or which become due on or after the date hereof.
Mmt/u100-482 050797
970023
5. This Assignment shall be binding upon and inure to the benefit of Assignor,
Assignee, and their respective successors and assigns.
6. This Assignment may be executed in separate counterparts which, when taken
together, shall constitute one document.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the date set
forth above.
ASSIGNOR:
U S WEST Communications, Inc., a
Colorado corporation
By
Name
Its
ASSIGNEE:
Weld County, a Political Subdivision of the
State of Colorado
ATTEST:
By
Name
Its
MmUu100-482 050797
-2-
•
SPECIAL WARRANTY DEED
THIS DEED, made this Ye- day of June, 1997, between U S WEST
Communications, Inc., a Colorado corporation, f/k/a The Mountain States Telephone and
Telegraph Company, a Colorado corporation ("Grantor"), and Board of County Commissioners
for the County of Weld, a political subdivision of the State of Colorado, whose legal address
is 915 10th Street, P.O. Box 758, Greeley, Colorado 80632 ("Grantee"):
WITNESSETH, that the Grantor, for and in good and valuable consideration of the sum
of TEN AND NO/100 DOLLARS, the receipt and sufficiency of which is hereby acknowledged,
has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey
and confirm, unto the Grantee, its successors and assigns forever, all the real property and
improvements, located in the County of Weld, State of Colorado, described on Exhibit A.
The Grantor, for itself and for its successors in interest, does by these presents expressly
limit the covenants of the deed to those herein expressed, and excludes all covenants arising or
to arise by statutory or other implication, and does hereby covenant that agaihst all persons
whomsoever lawfully claiming or to claim by, through or under said Grantor and not otherwise,
it will forever warrant and defend the said described real estate, however, subject to and
excepting those items identified on Exhibit B attached hereto and incorporated herein by this
reference.
IN WITNESS WHEREOF, the Grantor has executed this deed on the date first written
above.
U S WEST Communications, Inc:, a Colorado
corporation
Approved as to Legal Form
By Counsel to Grantor.
Fi er Sweetba C.
Itts dl v.
(p/,r/CilC
STATE OF Crl6vw.AO )
ss.
COUNTY OF ahgsk
The foregoing instrument was acknowledged befo a me this
, by t4Cla ) (<-
s Attorney -in -Fact
WITNESS my hand and official seal.
Notary Public
My commission expires -S \ane4\ VS ZOO8
N6RN10DI91 060997 U0162swd..DocQ
--..
State of Colorado
Teresa L. Nelson
Notary Public
2555460 B-1613 P-677 06/30/1997 10:00A PG 1 OF 3 REC DOC
Weld County CO JA Suki Tsukamoto Clerk & Recorder 16.00
EXHIBIT A
(To Special Warranty Deed to County of Weld)
Lot 2, U S WEST Communications 1st Filing, being a portion of the Northeast Quarter
of Section 23, Township 5 North, Range 66 West of the 6th P.M., City of Greeley,
County of Weld, State of Colorado.
EXCLUDING, HOWEVER, all of Grantor's personal property, equipment and fixtures
located on the Property which personal property and fixtures are used by Grantor for the
maintenance, operation, repair, replacement and refurbishment of Grantor's communications
facilities, including Grantor's antennae affixed to the tower located on the Property, together
with the Grantor's antennae, radio equipment, and a radio base station which are located in
the building on the Property; and
AND FURTHER EXCLUDING, any personal property, equipment and fixtures located in the
building or the tower located on the Property and owned by any third party, including but not
limited to, any personal property and fixtures of Westlink located on the Property pursuant to
the Agreement between Grantor and The Westlink Company with an effective date of July 1,
1994.
2555460 B-1613 P-677 06/30/1997 10:OOA PG 2 OF 3
EXHIBIT B
1. Right of way for the Southard Lateral over and across the NE 1/4 of said Section 23 as
evidenced by Decree recorded May 31, 1928 in Book 832 at Page 287.
2, Reservation by the UNION PACIFIC RAILROAD COMPANY, its successors and assigns in Deed
recorded OCTOBER 11, 1906 in BOOK 233 at PAGE 53
(1) All coal, and other minerals, within or underlying said lands;
(2) The exclusive right to prospect in or upon said land for coal and other minerals
therein or which may be supposed to be therein and to mine for and remove from said
land, all coal and other minerals which may be found thereon by anyone;
(3) The right of ingress and regress upon said land to prospect for, mine and remove
any and all such coal and other minerals and the right to use so much of said land as
may be convenient or necessary for the right of way to and from such prospect places
or mines, and for the convenient and proper operation of such prospect places, mines,
and for roads and approaches thereto or for removal therefrom of coal, minerals,
machinery, or other material;
(4) The right of said Union Pacific Railroad Company to maintain and operate its
railroad in its present form of construction, and to make any change in the form of
construction or method of operation of said railroad;
and any interests therein, assignments or conveyances thereof.
3.. Taxes for the year -1997 and subsequent years.
4. All items of tet.ord.
5. The Permanent Facilities License Agreement from Grantee to Grantor of even date. herewith.
2555460 B-1613 P-677 06/30/1997 10;OOA PG 3 OF 3
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