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HomeMy WebLinkAboutResolution-2006-0027 CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 27 Series of 2006 TITLE: A RESOLUTION APPROVING A TOWER LEASE, WITH OPTIONS, ALLOWING T -MOBILE WEST CORPORATION TO UTILIZE THE MUNICIPAL RADIO TOWER WHEREAS, the City Council wishes to enter into a lease with T-Mobile West Corporation for use of space on the municipal radio tower located at City Hall, and WHEREAS, the City has negotiated a lease with T-Mobile West Corporation. NOW, THEREFORE, BE IT RESOLVED by the Mayor and Wheat Ridge City Council, that: Section 1. Lease Approved The lease agreement between the City and T-Mobile West Corporation for use of space on the City radio tower is hereby approved and the Mayor and City Clerk are authorized and directed to execute the same Section 2. Effective Date June 12, 2006 This Resolution shall be effective immediately upon adoption DONE AND RESOLVED this 12 day of June, 2006 ATTEST .--' / - , , --:::'] \1' ,I, Ai (Ct" Jery D[1)111io, Mayor ~OcLv- amela Anderson, City Clerk , Site Number' Site Name Markel TOWER LEASE TRANSMITTAL DN03471A Wheat Ridge Municipal Tower DeJ1Y.IT Date Turned In: Site Acquisition Coordinator' Denise Gibbons l4/1ached p/ea5!].Jjnd. ! :J Landlord-signed leases /1 Landlord-signed. notarized memorandums Owncr Authorization Agreement '\' Landlord-signed W-9 Authorization to sign lease (if applicable) ~ IA"farkelInformalion Market Entit} Name: Type of Enti!] Market address: T-Mobile West Corporation Corporation 2323 Dclgany Street Denver, CO. 80216 Wayne Leuck Mountain West Area Director Director Name Director Title: amllord /11 ormal/oll Landlord Name: City of Wheat Ridge Laodlord Enhty' A MUnicipal corporation of the (i.e mdivldual. State of Colorado corporation, ete. ) Mai ling 'l.ddress Phone Number Fax Number i i ~ ~ile IlIformill/v!, : <;;te ".ddress I , Square hl01ag" Parcel Numhcr ,\CI lLclIse TCfflH \\1::1\'.:''': r-,;~n~:: I Rf:nt '~ rrlC J(J ! Rent Fn":4UI;::Ul"[ R~'[n ~nuf:i1_.')t:' LA.:~e 1 enn R..:iJ'.:\;';:;.( i ~:~!i.) lancel Terms Insurance 7500 West 29th Avenue '03-235-2860 lIJ3-23S-2857 2nd Landlord Name Additional Mailing Address (if any) Mailing Address: Phone Number' Fax Number 500 VJesl 29th A.vcnue wheat Ridge, CO 80033 OH square fc~t N-264-!"-I\<1I ~il(J !el.:. . iI, ,,1' \Vh,'.,)( Ri,~ 1: I "0000 = tilteen hundred dollars Monthly 4- G/(t =~ to u r perccn I five (5) vcars l\\U (2) additIOnal iivt:-year LCfms sixty (60) days prior One Million($ 1.000,000(0) 1/011 TamI Option Amount: Option T ernr OptIOn Renewal AmI: Optwn Renewal Term. $3,000.UO = three thousand dollars six (6) months $9,00000 = nine thousand dollars '1IX f 6 t months , i i .-J ! {t rent 1S to he paid annual/v elller the equivalem monthly amount and add a paragraph to thE addendum stating It needs /0 be paid anmw.i"- it CPI to be used leave de/au Its and add a para~rapll to the addendum I __.J Comme1lts See Attached Addcndum. Approved by' Real Estate Manager Date Legal Department Date General Managcr/[)ireetor Date Vice Preside"t (i f applicable) Date TOWER LEASE WITH OPTION THIS TOWER LEASE WITH OPTION (Ihis "Lease") is by and between City of Wheat Ridge, a Municipal corporation of the Slate of Colorado ("Landlord") and T-Mobile West Corporal ion a Delaware Corporation ("Tenant"). I Option to Lease. (a) In consideralion of the payment of three thousand and nollOO dollars ($3,000.00) (the "Option Fee") by Tenant to Landlord. Landlord hereby grants to Tenant an option to lease a portion of the real property described in the attached Exhibit A (the "Property"), together with the right to use the tower located thereon ("Tower") on the terms and conditions set forth herein (the "Option"). The Option shall be for an initial term of six(6) months, commencing on the Effective Date (as defined below) (the "Option Period"). The Option Period may be extended by Tenant for an addilional six (6) months upon written notice to Landlord and payment of the sum of nine thousand and nol100 dollars ($9.000.00) ("Additional Option Fee") at any time prior to the end of the Option Period. (b) During the Option Period and any extension thereof, and during the Initial Term and any Renewal Term (as those terms are defined below) of this Lease. Landlord agrees to cooperate wilh Tenant in obtaining, at Tenanl's expense, all licenses and permits or authorizations required for Tenant's use of the Premises (as defined below) from all applicable government and/or regulatory entities (including, without limitation, zoning and land use authorities, and the Federal Communication Commission ("FCC") ("Governmental Approvals"), including all land use and zoning permit applications, and Landlord agrees to cooperate with and to allow Tenant, at no cost to Landlord, to obtain a title report. zoning approvals and variances, land-use permits. Landlord expressly grants to Tenant a right of access to the Property 10 perform any surveys. soil tests, and other engineering procedures or environmental investigations ("Tests") on the Property deemed necessary or appropriate by Tenant to evaluate the suitability of the Property for the uses contemplated under this Lease. During the Oplion Period and any extension thereof, and during the Initial Term or any Renewal Term of this Lease, Landlord agrees thaI it will not interfere with Tenant's efforts to secure other licenses and permits or authorizations that relale to other property During the Option Period and any extension thereof. Tenant may exercise the Option by so notifYing Landlord in writing, at Landlord's address in accordance with Section 12 hereof. (c) If Tenant exercises the Oplion, then Landlord hereby leases to Tenant the use of that portion of the Tower and Property, together with easements for access and utilities. generally described and depicted in the attached Exhibit B (collectively referred to hereinafter as the "Premises"). The Premises. located at 7500 West 29th Avenue, Wheat Ridge, CO 80033 comprises approximately 300 square feet. Tenant's location on the Tower shall be at 85 feet above ground level. 2. Term. The initial term of this Lease shall be five (5) years commencing on the date of exercise oflhe Option (the "Commencement Date"), and lerminaling al midnight on the last day of the initial term (the "Initial Term"). 3 Permitted Use. The Premises may be used by Tenant for the transmission and reception of radio communication signals and for the construction, installation, operation. maintenance. repair, removal or replacement of related facilities. including, without limitation. antennas, microwave dishes, equipment shelters and/or cabinels and related activities. 4 Rent. Tenant shall pay Landlord, as rent, one thousand fifteen hundred and noli 00 dollars ($\ ,50000) per month ("Rent"). Rent shall be payable within twenty (20) days following the Commencement Date, prorated for the remainder of the month in which the Commencement Date falls, and thereafter Rent will be payable monthly in advance by the fifth day of each month to Landlord at the address specified in SecIion 12 below (flhis Lease is lerminated at a time other than on the last day ofa month, Rent shall be prorated as of the date of termination for any reason (other than a default by Tenant) and all prepaid Rent shall be immediately refunded to Tenant. 5 Renewal. Tenant shall have the right to extend this Lease for two (2) additional and successive five-year lerms (each a "Renewal Term") on the same terms and conditions as set forth herein, excepl that Rent shall be increased by four percent (4%) of the Rent paid over the preceding year This Lease shall automatically renew for each successive Renewal Term unless Tenant notifies Landlord. in wriling, of Ten ant's intenlion not to renew this Lease at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term. (fTenant shall remain in possession of the Premises at the expiration of this Lease or any Renewal Term without a written agreement. such tenancy shall be deemed a month-to-month tenancy under the same terms and conditions of this Lease. 6. Interference. Tenant shall not use the Premises in any way which interferes with the use of the Property by Landlord or lessees or licensees of Landlord with rights in the Property prior in lime to Tenanl's (subject to Tenant's righls under this Lease. including, without limilation, non-interference). Similarly, Landlord shall not use, nor shall Landlord permit its lessees. licensees. employees, invitees or agents to use. any portion of the Property in any way which interferes with the operations of Tenant. Such interference shall be deemed a material breach by the interfering party, who shall, upon written notice from the other, bc responsible for terminating said interference. In the event any such interference does not cease promptly, the parties acknowledge that continuing interference may cause irreparable injury and, therefore, the injured party shall have the righI, in addition to any other rights that it may have at law or in equity, to bring a court action to enjoin such interference or to terminate this Lease immediately upon written notice. 7 Improvements; Utilities; Access. (al Tenant shall have the right, at its expense, to erect and maintain on the Premises improvements, personal property and facilities necessary to operate its communications system, including, without limitation, radio transmitting and receiving antennas. microwave dishes, equipment shelters and/or cabinets and related cables and utility lines and a location based system, as such location based system may be required Site Nwnber Site Name: Market DN03471A \Vheat Ridge Municipal Tower Denver Tower Lease Version 3.6.06 by any county, state or federal agency/departmenl, including. withoul limitation. additional antenna(s), coaxial cable, base units and other associated equipment (collectively, the "Antenna Facilities"). Tenant shall have the right to alter. replace, expand, enhance and upgrade the Antenna Facilities al any lime during the lenn of this Lease. Tenant shall cause all construction to occur lien-free and in compliance with all applicable laws and ordinances. Landlord acknowledges that il shall neither interfere with any aspects of construction, nor attempt to direct construction personnel as to the location of or method of installation of the Antenna Facilities and Ihe Easemenls (as defined below). The Antenna Facilities shall remain the exclusive property of Tenant and shall not be considered fixtures. Tenant shall have the right to remove the Antenna Facilities at any time during and upon the expiration or tennination of this Lease. (b) Tenant, at its expense, may use any and all appropriale means of reslricting access to the Antenna Facilities. including. without limitation. the construction of a fence. (c) Tenant shall, at Tenanl's expense. keep and maintain the Antenna Facilities now or hereafter located on the Property in commercially reasonable condition and repair during the term of this Lease, normal wear and tear and casualty excepted. Upon termination or expiralion oflhis Lease, the Premises shall be returned to Landlord in good, usable condition, normal wear and tear and casualty excepted. (d) Tenant shall have the righlto install utilities. at Tenant's expense, and to improve Ihe present utilities on the Property (including. but not limiled to. the installation of emergency power generators). Landlord agrees 10 use reasonable efforts in assisting Tenant to acquire necessary utility service. Tenant shall, wherever practicable, install separate meters for utilities used on the Property by Tenant. In the event separate meters are not installed. Tenant shall pay the periodic charges for all utilities attributable to Tenant's use at the rate charged by the servicing utility Landlord shall diligcntly correct any variation, interruption or failure of utility service. (e) As partial consideration for Rent paid under this Lease, Landlord hereby grants Tenant easements in, under and across the Property for ingress, egress, utilities and access (including access for the purposes dcscribed in Section I) to the Premises adequate to install and maintain utililies, including, but not limited to, the installation of power and telephone service cable, and 10 service the Premises and the Antenna Facilities at all times during the Initial Tenn of this Lease and any Renewal Term (collectively, the "Easements"). The Easements provided hereunder shall have the same term as this Lease. (I) Tenant shall have 24-hours-a-day, 7-days-a-week access to the Premises at all times during the Initial Tenn of this Lease and any Renewal Tenn, at no charge to Tenant. (g) Landlord shall maintain and repair all access roadways from the nearesl public roadway to the Premises in a manner sufficient to allow vehicular and pedestrian access at all limes. at its sole expense, except for any damage to such roadways caused by Tenant. 8. Tennination. Except as otherwise provided herein, this Lease may be lenninated. withoul any penalty or further liability as follows: (a) upon thirty (30) days' written notice by Landlord if Tenant fails to cure a default for payment of amounls due under this Lease within such thirty (30) day period; (b) immediately upon written notice by Tenant if Tenanl notifics Landlord of any unacceptable results of any Tests prior to Tenant's installation of the Antenna Facilities on the Prcmises, or if Tenant does nol obtain, mainlain. or otherwise forfeits or cancels any license (including. without Iimitalion. an FCC license), permil or any Governmental Approval necessary 10 the installalion and/or operation of the Antenna Facilities or Tenant's business; (c) upon thirty (30) days' written notice by Tenant if Tenant determines thaI the Property or Ihe Antenna Facililies are inappropriate or unnecessary for Tenant's operations for economic or technological reasons; (d) immedialely upon written notice by Tenant if the Premises or the Antenna Facilities arc destroyed or damaged so as in Tenant's reasonable judgment to subslantially and adversely affect the effective use of the Antenna Facilities. In such event. all rights and obligations of the parties shall cease as of the dale of the damage or destruction, and Tenant shall be entitled to Ihe reimbursement of any Renl prepaid by Tenant. If Tenant elects to eonlinuc this Lease, lhen all Rent shall abale until the Premises and/or the Antenna Facililies are restored to the condilion existing immediately prior to such damage or destruction; or (e) at the time title to the Property transfers to a condemning authority pursuant to a taking of all or a portion of the Property sufficient in Tenant's determination to render the Premises unsuitable for Tenant's use. Landlord and Tenanl shall each be entilled to pursue their own separate awards with respect to such taking. Sale of all or part of the Property to a purchaser with the power of eminent domain in the face of the exercise oflhe power shall be treated as a taking by condemnation. 9 Default and Right to Cure. Notwithstanding anything contained herein to the contrary and without waiving any other rights granted to it at law or in equity, each party shall have the right, but not the obligation. to tenninate this Lease on written notice pursuant to Section 12 hereof. to take effect immediately, if the other party fails to perform any covenant or commits a material breach of this Lease and fails to diligenlly pursue a cure thereof to its complelion after Ihirty (30) days' written notice specifying such failure ofperfonnance or default. 10. Taxes. Landlord shall pay when due all real property taxes for the Property, including the Premises. In the event that Landlord fails to pay any such real property taxes or other fees and assessments, Tenant shall have the right, but not the obligation, to pay such owed amounts and deduct them from Rent amounts due under this Lease. Notwithstanding the foregoing. Tenant shall pay any personal property tax. Site Number Site Name" Market DN03471A Wheat Ridge Municipal Tower Denver Tower Lease - Version 3.6.06 real property tax or any other tax or fee which is directly attributable to the presence or inslallalion of Tenant's Antenna Facilities, only for so long as Ihis Lease remains in effect. If Landlord receives notice of any personal property or real property lax assessment against Landlord, which may affect Tenant and is directly attributable to Tenant's installation. Landlord shall provide timely notice of the assessmenl to Tenant sufficienl to allow Tenant to consent to or challenge such assessment, whether in a Court, administrative proceeding, or other venue, on behalf of Landlord andlor Tenant. Further, Landlord shall provide to Tenant any and all documentation associated with the assessment and shall execute any and all documents reasonably necessary to effectuate the intent of this Section 10. In Ihe event real property taxes are assessed against Landlord or Tenant for the Premises or the Property, Tenant shall have Ihe right, but not the obligation. to terminate this Lease wilhout further liability after thirty (30) days' written notice to Landlord, provided Tenant pays any real property taxes assessed as provided herein. II Insurance and Subrogation and Indemnification. (a) Tenant and Landlord each will maintain Commercial General Liability Insurance in amounts of One Million and nollOO Dollars ($1,000,000.00) per occurrence and Two Million and nollOO Dollars ($2.000,000 00) aggregate. Each party may salisfy this requirement by obtaining the appropriate endorsement to any master policy of liability insurance such party may maintain. (b) Tenanl and Landlord shall each maintain "all risk" or "special causes of loss" property insurance on a replacement cost basis for their respective owned real and/or personal property (c) Landlord and Tenant hereby mutually release each other (and their successors or assigns) from liability and waive all right of recovery against the other for any loss or damage covered by their respective first party property insurance policies for all perils insured thereunder In the event of such insured loss, neither party's insurance company shall have a subrogated claim against the other. (d) Subject to the property insurance waivers set forth in subsection II(c) above, Landlord and Tenant each agree to indemnify and hold harmless the other party from and against any and all claims. damages, costs and expenses, including reasonable attorney fees, to the extent caused by or arising out of the negligent acts or omissions or willful misconduct in Ihe operations or activilies on the Property by the indemnifying party or the employees, agents, contractors, licensees, tenants and/or subtenants of the indemnifying party, or a breach of any obligation of the indemnifying party under this Lease. The indemnifying party's obligalions under this section are contingent upon its receiving prompt written notice of any event giving rise to an obligation to indemnify the other party and the indemnified party's granting it the right to control Ihe defense and settlement of the same. (e) Notwithstanding anything to Ihe contrary in this I.ease, the parties hereby confirm that the provisions of this Section II shall survive the expiration or termination of this Lease. (I) Tenant shall not be responsible to Landlord, or any third-party. for any claims, costs or damages (including, fines and penalties) attributable to any pre-existing violations of applicable codes, statutes or other regulations governing the Property 12. Notices. All notices, requests, demands and other communications shall be in writing and are effective three (3) days after deposit in the U.S. mail, certified and postage paid, or upon receipt if personally delivered or sent by next-business-day delivery via a nationally recognized overnight courier to the addresses sel forth below Landlord or Tenant may from time to time designate any other address for this purpose by providing written notice to the other party If to Tenant. to. With a copy to: T-Mobile USA. Inc. 12920 SE 38'h Street Bellevue, W A 98006 Attn: pes Lease Administrator Wilh a copy to: Attn: Legal Dept. T-Mobile West eorporalion 2323 Delgany Slreet, Denver, eo 80216 Atln: Lease Administration Manager If to Landlord, to: With a CODY to. Director of Public Works City of Wheat Ridge 7500 West 29'h Avenue Wheat Ridge, eo 80033 Gerald E. Dahl Murray Dahl Kuechenmeister & Renaud LLP 240 I 15'h Street Suite 200 Denver CO 80202 13. Ouiet Enioyment, Title and Authority Landlord covenants and warrants to Tenant that (iJ Landlord ha_ full right. power and authority to execute this Lease; (ii) it has good and unencumbered title to the Property and the Tower free and clear of any liens or mortgages, except those disclosed to Tenant and which will not interfere with Tenant's rights to or use of the Premises; and (iii) execution and performance of this Lease will not violate any laws, ordinances, covenants, or the provisions of any mortgage, lease, or other agreement bmdmg on Landlord. Landlord covenants that at all times during the term of this Lease, Tenant's quiet enjoyment of the Premises or any part thereof shall not be disturbed as long as Tenant is not in default beyond any applicable grace or cure period. Site Number Site Name: Market: DNOJ471A \Vheat Ridge Municipal Tower Denver Tower Lease VersIOn 3.6.06 14. Environmental Laws. Landlord represents that it has no knowledge of any substance, chemical or waste (colleclively, "Hazardous Substance") on the Property that is identified as hazardous, loxic or dangerous in any applicable federal. state or local law or regulation. Landlord and Tenant shall not introduce or use any Hazardous Substance on the Property in violation of any applicable law Landlord shall be responsible for, and shall promptly conduct any investigalion and remediation as required by any applicable environmental laws, all spills or other releases of any Hazardous Substance not caused solely by Tenant, that have occurred or which may occur on the Property Each party agrees to defend, indemnify and hold harmless the other from and against any and all administrative and judicial actions and rulings. claims, causes of action. demands and liability (collectively. "Claims") including, but not limited to, damages, costs, expenses, assessments. penalties, fines, losses, judgments and reasonable attorney fees that the indemnitee may suffer or incur due to the existence or discovery of any Hazardous Subslances on the Property or the migralion of any Hazardous Substance to other properties or the release of any Hazardous Substance into the environment (collectively. "Actions"). that relate to or arise from the indemnitor's activities on Ihe Property Landlord agrees to defend, indemnify and hold Tenant harmless from Claims resulting from Actions on the Property not caused by Landlord or Tenant prior to and during Ihe Initial Term and any Renewal Term. The indemnifications in this section specifically include, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or resloration work required by any governmental authority This Section 14 shall survive Ihe termination or expiration of this Lease. 15 Assignment and Subleasing. Tenant shall have the right to assign or otherwise transfer this Lease and the Easements (as defined above) to any person or business entity which: (i) is FCC licensed to operate a wireless communicalions business; (ii) is a parent, subsidiary or affiliate of Tenant or Tenant's parent; (iii) is merged or consolidated with Tenant; or (iv) acquires more than fifty percent (50%) of either an ownership interest in Tenant or the assets of Tenant in the "Metropolitan Trading Area" or "Basic Trading Area" (as those terms are defined by the FCC) in which the Property is located. Upon such assignment. Tenant shall be relieved of all liabilities and obligations hereunder and Landlord shall look solely to the assignee for performance under this Lease and all obligations hereunder Tenant may sublease the Premises, upon written notice to Landlord. Tenant may otherwise assign this Lease upon written approval of Landlord. which approval shall nol be unreasonably delayed, withheld. conditioned or denied. Additionally. Tenant may. upon notice to Landlord, grant a security interest in this Lease and the Antenna Facilities, and may collaterally assign this Lease and the Antenna Facilities to any mortgagees or holders of security interests, including their successors or assigns (collectively "Secured Parties"). In such event, Landlord shall execute such consent to leasehold financing as may reasonably be required by Secured Parties. 16. Successors and Assigns. This Lease and the Easements granted herein shall run with the land, and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. 17 Waiver of Landlord's Lien. Landlord hereby waives any and all lien rights it may have, statutory or otherwise, concerning the Antenna Facilities or any portion thereof, which shall be deemed personal property for the purposes of this Lease, whether or not the same is deemed real or personal property under applicable laws, and Landlord gives Tenant and Secured Parties the right to remove all or any portion of the same from time to time, whether before or after a default under this Lease, in Tenant's and/or Secured Party's sole discretion and without Landlord's consent. 18. Miscellaneous. (a) The prevailing party in any litigation arising hereunder shall be entitled 10 reimbursement from the other part) of its reasonable attorneys' fees and court costs, including appeals. if any (b) This Lease constitutes the enlire agreemenl and understanding of Ihe parties, and supercedes all offers, negotiations and other agreements with respect to the subject matter and property covered by this Lease. Any amendments to this Lease must be in writing and executed by both parties. (c) Landlord agrees to cooperate with Tenant in executing any documents necessary to prolect Tenant's rights in or use of the Premises. A Memorandum of Lease in substantially the form attached hereto as Exhibit C may be recorded in place of this Lease by Tenant. (d) In the event the Property is encumbered by a mortgage or deed of trust, Landlord agrees. upon rcquest of Tenant, to obtain and furnish to Tenant a non-disturbance and attornment agreement for each such mortgage or deed of trust, in a fonn reasonably acceptable to Tenant. (e) Tenant may obtain title insurance on its interesl in the Premises and Landlord agrees to execute such documents as the title company may require in connection therewith. (I) This Lease shall be construed in accordance with the laws of the state in which the Property is located, without regard 10 the conflicts of law principles of such state. (g) If any term of this Lease is found to be void or invalid, the remaining terms of this Lease shall continue in full force and effect. Any questions of particular interpretation shall not be interpreted against the drafter, but rather in accordance with the fair meaning thereof. No provision of this Lease will be deemed waived by either party unless expressly waived in writing by the waiving party No waIver shall be implied by delay or any other act or omission of either party No waiver by either party of any provision of this Lease shall be deemed a waiver of such provision with respect to anv subsequent matter relating to such provision. Tower Lease - VersIOn 3 6 06 Site Number: Site Name Market. DN034JlA Wheat Ridge Municipal Tower Denver (h) The persons who have executed this Lease represent and warrant Ihat they arc duly authorized to execute Ihis Lease in their individual or representative capacities as indicaled. (i) This Lease may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute a single instrument. U) All Exhibits referred to herein and any Addenda are incorporated herein for all purposes. The parties understand and acknowledge that Exhibits A and B may be attached to this Lease and the Memorandum of Lease. in preliminary form. Accordingly, the parties agree that upon the preparation of final, more complete exhibits, Exhibits A and/or B, as the case may be, may be replaced by Tenant with such final. more complete exhibit!s). (k) If either party is represented by any broker or any other leasing agenl, such party is responsible for all commission fee or other payment to such agent, and agrees to indemnity and hold the other party harmless from all claims by such broker or anyone claiming Ihrough such broker 19 Tower Marking and Lighting Requirements. Landlord acknowledges that it, and not Tenant, shall be responsible for compliance with all Tower marking and lighting requirements of the Federal Aviation Administration ("FAA") and the FCC Landlord shall indemnify and hold Tenant harmless from any tines or olher liabilities caused by Landlord's failure to comply with such requirements. Should Tenant be cited by either the FCC or FAA because the Tower is not in compliance and, should Landlord fail to cure the conditions of noncompliance within the time fTame allowed by the citing agency. Tenant may either terminate this Lease immediately on notice 10 Landlord or proceed to cure the conditions of noncompliance at Landlord's expense. which amounts may be deducted from Rent otherwise payable under this Lease. The effective date of this Lease is the date of execution by the last party to sign (the "Effective Date"). LANDLORD: Wheat Ridge, a Colorado municipal corporation r . 1'1 ,< 11~IJUv- By' Printed Name: Its: Mavor Date: +/ I{/ IC &. TENANT: T -Mobile West Corpuration, a Delaware Corporation By' Prinled Name: Wayne Leuck Its: Mountain West Area Director Date: T-Mobile Legal Approval Site Number. Site Name: Market DN0347lA Wheat Ridge Municipal TO\\ier Denver 4 Tower Lease Version 3 6,06 EXIIIBIT A Legal Description The Property is legally described as follows: PARCELl LOT I. BLOCK3, BARTH'S SUBDIVISION, EXCEPTING THE NORTH y, OF THE EAST y, OF SAID LOT AND THE WEST 6 FEET OF SAID LOT THEREFROM, COUNTY OF JEFFERSON, STATE OF COLORADO PARCEL II NORTH 'I, OF LOT I BLOCK 3, BARTH'S SUBDIVISION, EXEPT THE EAST 25 FEET AS DESCRIBED IN BOOK 722 AT PAGE 353, COUNTY OF JEFFERSON, STATE OF COLORADO Tower Lease Version 3 6.06 Site Nurrtber: Site Name: Market DN03471A Wheat Ridge MUnicipal Tower Denver Site Nwnber: Site Name: Market EXHIBIT B The location of the Premises within the Property (together with access and utilities) is more particularly described and depicted as follows: DRAWINGS ATTACHED DNOJ471A Wheat Ridge Municipal Tower Denver Tower Lease - Version 3.6.06 ADDENDUM TO TOWER LEASE WITH OPTION (Additional Terms] In the evenl of conllicl or inconsistency between Ihe terms of this Addendum and this Lease. Ihe terms ofthe Addendum shall govern and control. All capitalized lerms shall have the same meaning as in this Lease. l. Delete Paragraph I (b), Option to Lease in its entirety and replace with the following: (b) During the Option Period and any extension thereof, and during the Initial Term and any Renewal Term (as those terms are defined below) of this Lease, Landlord agrees to cooperale with Tenant in obtaining, at Tenant's expense, all licenses and permits or authorizations required for Tenant's use of the Premises (as defined below) from all applicable governmenl and/or regulatory entities (including. wilhoullimitation, zoning and land use authorities. and the Federal Communication Commission ("FCC") ("Governmental Approvals"), including all land use and zoning permil applications, and Landlord agrees 10 cooperate with and to allow Tenant. at no cost to Landlord. to obtain a title report, zoning approvals and variances, land-use permits. Tenant recognizes that the Landlord is the municipality in which the tower is located and thaI the execution of this lease does not guarantee approval of any permits or applications related to the Tenant's equipment installation. Landlord expressly grants to Tenant a right of access to the Property to perform any surveys, soil tests, and other engineering procedures or environmental invesligations ("Tests") on the Property deemed necessary or appropriate by Tenant to evaluate the suitability of the Property for the uses contemplated under this Lease. During the Option Period and any extension thereof. and during the Initial Term or any Renewal Term of this Lease, Landlord agrees that it will not interfere with Tenant's efforts to secure other licenses and permits or aulhorizations that relate to olher property During the Oplion Period and any extension thereof. Tenant may exercise the Option by so notifying Landlord in writing, at Landlord's address in accordance with Section 12 hereof. 2. Delete Paragraph 2, Term in its entirety and replace with the following: The initial term of this Lease shall be five (5) years commencing on the date of exercise of the Option (the "Commencemenl Date" l. and terminating at midnight on the day before the lifth anniversary of the Commencement Date. 3. Delete Paragraph 3, Permitted Use in its entirety and replace with the following: The Premises may be used hy Tenant for the transmission and reception of radio communication signals and for the construction. installation, operation, maintenance, repair, removal or replacement of related facilities more particularly described as follows:. . Six antenna to be mounted at 85-feet on existing lattice tower . A lotal of 24 coaxial cable that connect to the antennas. also attached to the lattice tower . The equipment compound and enclosed equipmenl cabinets in the parking lot near the tower will be approximately 20' x 20' within a six-foot high fenced enclosure. . There will be no microwave dishes placed on Ihe lattice lower 4. Delete Paragraph 4, Rent in its entirety and replace with the following: Tenant shall pay Landlord, as rent. one thousand filleen hundred and nollOO dollars ($1,500.00) per month ("Rent"). On the anniversary of the Commencement Date of the lease, the Rent shall be increased by four percent (4%) of the Rent paid over the preceding year Rent shall be payable wilhin twenty (20) days following the Commencement Date, prorated for the remainder of the monlh in which the Commencement Date falls, and thereafter Rent will be payable monthly in advance by the fifth day of each month to Landlord al the address specilied in Section 12 below If this Lease is terminated at a time other than on the last day ofa month, Rent shall be prorated as of the date of termination for an) reason (other than a default by Tenant) and all prepaid Rent shall be immediately refunded to Tenant. 5. Delete Paragraph 5, Renewal in its entirety and replace with the following: Tenant shall have the right to extend lhis Lease for two (2) addilional and successive five-year terms (each a "Renewal Term") on the same terms and conditions as set forth herein. This Lease shall automatically renew for each successive Renewal Term unless Tenant notitlcs Landlord, in writing. of Ten ant's intention not to renew this Lease at least thirty (30) days prior to the expiralion of the Initial Term or any Renewal Term. If Tenant shall remain in possession of the Premises at the expiration of this Lease or any Renewal Tenn without a wrillen agreement, such tenancy shall be deemed a month-to-month lenancy under the same terms and conditions of this Lease 6. Delete Paragraph 6, Interference in its entirety and replace with the following: Tenant shall not use the Premises in any way which interferes with the use of the Property by Landlord or lessees or licensees of Landlord with rights in the Property prior in time to Tenant's (subject to Tenant's rights under this Lease, including. without limitation, non-interference). Currently the Landlord has leases with Verizon, AT&T Wireless and Sprint Spectrum. Tenant's Antenna Facility shall not interfere with Landlord's emergency SCADA, (supervisory control and data acquisition) system or any other pobllc communications system operaled by Landlord (collectively" Landlord's System") , that is in place as a data gatheri~g and distribution system primarily used by, but not limited to, the Emergency Response Departments of the City of Wheat RIdge, (Collectively Site Number: Site Name' Market DN0347lA Wheat Ridge Municipal Tower Denver Addendum to Tower Lease - Version 1.6.06 "Landlord's Syslem"). In the evenl Tenant's Antenna Facilily causes interfcrence wilh Landlord's System or lessees or licensees radio communications and telephone systems. Tenanl shall cure said interference, promplly, or shut down the Anlenna Facility unIiI said inlerference is eliminated to the reasonable satisfaclion of Landlord. Similarly, Landlord shall not use, nor shall Landlord permit its lessees, licensees, employees. invitces or agents to use, any portion of the Property in any way which interferes with Tenant's Antenna Facilities. Such interference shall be dcemed a material breach by the interfering party. who shall, upon wrillen notice from the other. be responsible for terminating said interference. In the event any such interference does not cease promptly, the parties acknowledge that conIinuing inlerference may cause irreparable injury and, therefore, the injured party shall have the right, in addition 10 any other rights that it may have al law or in equity, to bring a court action to enjoin such interference or to terminate this Lease immediately upon wrillen notice. Interference shall be defined as radio frequency interference or RF Interference, further defined as any emission. radiation or induction that effects the functioning of or degrades, obstructs, or interrupts the radio communications of the Landlord and/or othcr individuals, as determined in Ihe Landlord's reasonable discretion. 7. Delete Paragraph 7 (aj, Improvements. Utilities, Access in its entirety and replace witb tbe following: (a) The equipment to be placed on and at the base of Ibc lattice tower (the "Antenna Facililies") is as follows: . Six antenna to be mounted on the existing lallice tower at 85-feet . A total of 24 coaxial cable that connect to the antenna, also allached to the towcr . The equipment compound and enclosed equipment cabinets at the base of the lattice tower will be (approximalely 20' x 20') within a six-foot high enclosure. The enclosure shall be designed of brick. block or bricklblock combination materials approved by the Landlord. . There will be no microwave dishes placed on the lattice tower . All final designs and placemenls shall be approved by the Landlord, which approval shall not be unreasonably withheld Tcnant may alter. replace, cxpand enhance and upgrade the Antenna Facilities at any lime during the term of this Lease with the wrillen approval of the Landlord limited to the above specified equipment. Tenant shall cause all construction to occur lien-free and in compliance with all applicable laws and ordinances. Landlord acknowledges that it shall neither interfere with any aspects of construction not attempt to direct construction personnel as to the location of or method of installation of the Antenna Facilities and the Easements (as defined below). The Antenna Facilities shall remain the exclusive property of Tenanl and shall not be considered fixtures. Tenant shall have the right to remove the Antenna Facilities at any time during and upon the expiration or termination of this Lease. 8. Delete Paragraph 7(b), Improvements, Utilities, Access in its entirety and replace with the following: (b)With written approval of the Landlord, Tenant. at its expense, may use appropriate means ofrestricting access to the Antenna Facilities. including. without limitation, the construction of a fence 9. Delete Paragraph 7 (c), Improvements, Utilities, Access in its entirety and replace with the following: Tenant shall, at Tenant's expense, keep and maintain the Antenna Facililies now or hereafter located on the Property in commercially reasonable condition and repair during the term of this Lease. normal wear and tear excepted. Upon termination or expiration of this Lease. the Premises shall be returned to Landlord in good. usable condition, normal wear and tear and casualty excepted. 10. Delete Paragraph 7 (d). Improvements. Utilities, Access in its entirety and replace with the following: (d) Tenant shall have the right to install utilities al Tenant's expense, and to improve Ihe present utilities on Ihe Property (including, but nOllimited to, the installation of emergency power generalors). Landlord agrees 10 use reasonable efforts in assisting Tennanl to acquire necessary utilil)' service. Tennant shall install separate meters for utilities used on the Property by Tenant. 11. Delete Paragraph 7(f), Improvements. Utilities. Access in its entirety and replace with the following: (f) Tenant shall have 24-hours-a-day , 7-days-a-week access to the Premises at all times during Ihe Initial Term of this Lease and any Renewal Term, at no charge to Tenant. The foregoing shall be subject to the following restrictions: Prior to accessing the Premises, Tenant must provide advance notice to the Landlord at the City of Wheat Ridge police Department Non-Emergency Phone Number at 303-237-2220. 12. Paragrapb 7 (h), Improvements. Utilities. Access shall be added as follows: (h) The Tenant acknowledges that the Landlord is currently constructing an addition and improvements to its City Hall building in the vicinity of the lattice tower and proposed equipment compound. The Tenant agrees to nol interfere with the Landlord's construction project and that use oflhe Landlord's Property by the Landlord's contractor has precedence to use by the Tenant. 13. Paragraph 7 (i), Improvements, Utilities, Access shall be added as follows: (i) The Tenant agrees to purchase a bird repellant system for the Tower that is acceptable to bolh Landlord and Tenant. Tenanl will reimburse Landlord for the installation of the bird rcpellant systcm to be installed by Landlord's contractor Landlord shall obtam Site Number Site Name. Market DN03471A \Vheat Ridge Municipal Tower Denver 2 Addendum to Tower Lease - FL Version 1.16.06 Tenant's approval of cosl of the installation the bird repellant system prior 10 installation, to which approval shall not be unreasonably withheld. 14. Paragraph 7 (j), Improvements. Utilities. Access shall be added as follows: (j) Upon issuance of a Building Permit by the City of Wheat Ridge, Tenant shall pay to Landlord fourteen thousand and nollOO dollars ($14,000)in lieu of constructing replacement parking for parking displaced by the equipmenl compound. Tenant shall replace the existing enclosure of the Landlord's emergency generator in conjunction with the construction of the equipment compound enclosure with the same materials as approved for the equipment compound enclosure. IS. Delete Paragraph 8(a), Termination in its entirety and replace with the following: (a) Upon fifteen (15) days written notice by Landlord if Tenant fails to cure a default for payment of amounts due under this Lease within such fifteen (0 IS) day period. 16. Paragraph 8(0, Termination shall be added as follows: (I) After the Initial Tenn, Landlord may terminate this Lease without cause upon two years' prior notice to Tenant. Notification shall be in writing and delivered in accordance with the Section 12 of this Lease. 17. Delete Paragraph 11, Insurance, Subrol!ation and Indemnification in its entirety and replace with the following: F Tenant shall procure and maintain the minimum insurance coverages listed below Such coverages shall be procured and maintained with insurance carriers duly authorized to do business in Ihe State of Colorado and rated no less than A- by A.M. Best Company In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. I Worker's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work for Tenant. 2. Commercial General Liability insurance with minimum combined single limits of One Million Dollars ($1,000,000) each occurrence and Two Million Dollars ($2,000,000) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage and (including completed operations). personal injury (including coverage for contractual and employee acts), blankel contractual. independent contractors, products and completed operations. The policy shall include coverage for explosion, collapse and underground hazards. The policy shall contain a severability of interests provision The policy required by Paragraph (A)(2) above. shall be endorsed to include Landlord and landlord's officers and employees as additional named insured's. Every policy required above shall be primary insurance and any insurance carried by Landlord. its officers or its employees, or carried by or provided through any insurance pool of Landlord, shall be excess and not contributory insurance to that provided by Tenant. No additional insured endorsement to any policy shall con lain any exclusion for bodily injury or property damage arising from completed operations. The Tenanl shall be solely responsible for any deductible losses under any policy required above. A certificate of insurance shall be completed by the Tenant's insurance agent as evidence that policies providing the required coverages, conditions and minimum limils are in full force and effect, and shall be reviewed and approved by Landlord prior to commencement of the Lease. The certilicale shall identifY this Lease and shall provide that Ihe coverages afforded under the policies shall not be canceled or terminated until at least 30 days prior written notice has been given to Landlord. The completed certificate of insurance shall be sent to Landlord. Failure on the part of tenant to procure or maintain policies providing the required coverages. conditions and minimum limits shall constitute a material breach of contract upon which Landlord may claim a default by Tenant, If Tenant does not cure the default within Ihe applicable cure period, Landlord may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith and all monies so paid by Landlord shall be repaid by Tenant to Landlord upon demand or Landlord may offset the cost of the premiums against any monies due to Tenant from Landlord. Tenant shall fully indemnifY the Landlord for all aclions of Tenant's subcontractors or sub-lessees The parties hereto understand and agree that Landlord is relying on and does not waive or intend to waive by any provisions of this contract, the monetary limitations (presently, $150,000 per person and $600,000 per occurrence) or any other rights, immunities and protections provided by the Colorado Governmental Immunity Act (C.R.S. ~ 24-10- 101 et seq.), as from time to time amended, or otherwise available to Landlord, its officers or employees A. B. c D 18. Delete Paragraph 13, Quiet Eniovment. Title and Authoritv in its entirety and replace with the following: Site Number" Site Name Market: DN03471A Wheat Ridge Municipal Tower Denver 3 Addendwn to Tower Lease - FL Version 116.06 Landlord covenants and warrants to Tenant that (i) Tenant has full right, power and authority to execute this Lease; (ii) it has good and unencumbered tiIle to the Property and Ihe Tower free and clear of any liens or mortgages, except those disclosed to Tenant and which will not inlerfere wilh Tenant's rights to or use of Ihe Premises; and (iji) execution and performance of this Lease will not violate any laws, ordinances, covenants, or the provisions of any mortgage, lease, or other agreement binding on Landlord. Landlord covenants that at all times during the lerm of this Lease, Tenant's quiel enjoymenl of the Premises or any part thereof shall not be disturbed as long as Tenant is not in default beyond any applicable grace or cure period. Tcnanl covenants and warrants to Landlord that (i) the person executing this Lease on behalf of the Tenant has the full right, power and authority to execute this Lea,e; (ii) Tenant wil not disturb the use of the Property by the Landlord or its Lessees in violation ofthis lease. 19. Delete Paragraph 14, Environmental Laws in its entirety and replace with the following: Landlord represents that it has no knowledge of any substance. chemical or waste collectively, ("Hazardous Substance") on the Property that is identified as hazardous, toxic or dangerous in any applicable federal, slate or local law regulation. Landlord and Tenant shall not introduce or use any Hazardous Substance on the Property in violation of any applicable law Each party agrees to defend, indemnify and hold harmless the other from and againsl any and all administrative and judicial actions and rulings claims, causes of action ,demands and liability (collectively, "Claims") including, but not limited to, damages, costs. expenses, assessments, penalties, fines losses, judgments and reasonable attorney fees Ihat the indemnitee may suffer or incur due to the existence or discovery of any Hazardous Substances on the Property or the migration of any Hazardous Subslance to any other properties or the release of any Hazardous Substances into the environment (collectively "Actions"). that relate to or arise from the indemnilOr's activities on Ihe Property Landlord agrees 10 defend. indemnifY and hold Tenant hannless from Claims resulting from Actions on the Property not caused by Landlord or Tenant prior to and during the Initial Term and any Renewal Term. This Section ]4 shall survive termination or expiration of this Lease. 20. Delete Paragraph 15, Assil!Oment and Subleasinl! in its entirety and replace with the following: Tenant shall have the right to assign or otherwise transfer this Lease and Easement to any person or business entity which is authorized pursuant to an FCC license to operate a wireless communications business, is a parent, subsidiary or affiliate of Tenant. controls or is controlled by or under common control with Tenant, is merged or consolidated with Tenant or purchases more than fifty percent (50%) of either an ownership interest in Tenant or the assets of Tenant in the "Metropolitan Trading Area" or "Basic Trading Area" (as those terms defined by the FCC) in which the Property is located. Upon such assignment, Tenant shall be relieved of all liabilities and obligations hereunder unless Landlord reasonably delcnnines that Ihe assignee is not of equal or substantially similar credit worthiness. Tenant may sublease the Premises, upon written notice to Landlord. Tenant may otherwise assign this Lease upon written approval of Landlord. which approval shall not be unreasonably delayed. withheld. conditioned or denied. Tenant shall not be released of its obligations under this Lease in the case of a sublease. 21. Delete Paragraph 17, Subordination of Landlord's Lien in its entirety and replace with the following: Landlord hereby subordinates any and all lien rights it may have, statutory or otherwise. concerning the Antennas Facilities or any portion therof which shall be deemed personal property for the purposes of this Lease, regardless of whether or not the same is deemed real or personal property under applicable laws, to the rights of any Mortgages and Land]ord gives any Mortgagee the right to remove all or any portion of the same trom time 10 time, whether before or after a defaulI under this Lease, in any Mortgagee's sole discretion and without Landlord's consent. 22. Delete Paragraph 18 (j) in its entirety and replace with the following: All Exhibits referred to herein and any Addenda are incorporated herein for all purposes. The parties understand and acknowledge that Exhibits A and B may be attached to this Lease and the Memorandum of Lease, in preliminary fonn, Accordingly. the parties agree that upon the preparation of final, more complete exhibit, Exhibits B, may be replaced by Tenant with such final. more complete exhibit. 23. Paragraph 18 (\), Miscellaneous shall be added as follows: Landlord shall be permitted to have a representative on the Premises, at Landlord's sole cost and expense. at all times during the construction of Tenant's Antenna Facility Its: City of Wheat Ridge, a Colorado municipal corporation 1 r ----- ,J <I L,1'j 'VI ! fJ.)'- trY, , J ' Je/rv udullio Mayor LANDLORD: By' Printed Name: Site Nwnber Site Name" Market DN03471A Wheal Ridge Municipal Tower Demo'er 4 Addendwn to Tower Lease ~ FL Version I 16 06 Date: TENANT: T-Mobile Wesl Corporation, a Delaware corporal ion By' Printed Name: Wayne Leuck Its: Mounlain West Area Director Date: Site Nwnber: Site Name: Market: DN0347IA Vlheat Ridge Municipal Tower Denver 5 Addendwn 10 Tower Lease - FL Versioll 1.16.06 EXHIBIT C Memorandum of Lease Memorandum of Lease Assessor's Parcel Number' 39-264-15-001 Between City of Wheat Ridge and T-Mobile West Corporation ("Tenant") A Tower Lease with Option (the "Lease") by and between City of Wheat Ridge a Colorado municipal corporalion ("Landlord") and T- Mobile West Corporation, a Delaware Corporation ("Tenant"), was made regarding a portion of the following property. See Attached Exhibit "A" incorporated herein for all purposes The Option is for a lerm of six (6) monlhs after Ihe Effective Date of the Lease (as defined under Ihe Lease), with up to one additional six (6) month renewal ("Optional Period"). The Lease is for a term of five (5) years and will commence on the date as set forth in the Lease (the "Commencement Date"). Tenanl shall have the right to extend Ihis Lease for two (2) additional and successive five-year terms.. IN WITNESS WHEREOF, the parties hereto have respectively executed this memorandum effective as ofthe date ofthe last party to sign. LANDLORD: City of Wheat Ridge Printed Name: , ,,-11 I Jerry DiTjllic0 . -.../ Mavor ./ .,.--] , i ! l' .' /~ t l~ . , By' Its: & / f';J, /0 ~1 Dale: TENANT: T-Mobile West Corporation By' Printed Name: Wayne Leuck Its: Mounlain West Arca Director Date: PAGE I . MEMORANDUM OF LEASE Site Number. Dn03471C Site Name: Wheat Ridge Municipal Market" Denver [No/ary block for Landlord[ {Landlord Notary block for a Corporation, Partnership ,or Limited Liability CompanYJ STATE OF COLORADO ) ) ss. ) COUNTY OF JEFFERSON This instrumenl was acknowledged before me on by Timolhv Pamato, Director, Public Works of the City of Wheat Ridge a Municipal corporation of the Stale of Colorado, on behalf of said Municipal corporation. Dated: Notary Public Print Name My commission expires (Use this space for notary stamp/seal) [Landlord Notary block for an IndividualJ ~TATE OF ) ) ss. ) COUNTY OF This instrument was acknowledged before me on by Dated. Notal) Public Print Name M) commission expires (Use Ihis space for notary stamp/seal) PAGE 2. MEMORANDUM OF LEASE Site Number. DN03471A Site Name" Wheat Ridge Municipal Tower Market Denver /Nota", block for Tenantl STATE Of COLORADO ) ) ss. ) COUNTY OF DENVER I certify that I know or have satisfactory evidence that Wayne Leuck is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the Mountain West Area Director ofT-Mobile West Corporation, a Delaware Corporation to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Public Print Name My commission expires (Use this space for notary stamp/seal) PAGE 3. MEMORANDUM OF LEASE Site Nwuber: DN0347lA Site Name Wheat Ridge Municipal Tower Market: Denver Memorandum of Lease EXHIBIT A Legal Description The Property is legally described as follows: PARCELl LOT 1, BLOCK3, BARTH'S SUBDIVISION, EXCEPTING THE NORTH II, OF THE EAST Y, OF SAID LOT AND THE WEST 6 FEET OF SAID LOT THEREFROM. COUNTY OF JEFFERSON, STATE OF COLORADO PARCEL II NORTH y, OF LOT I BLOCK 3, BARDI'S SUBDIVISION, EXEPT THE EAST 25 FEET AS DESCRIBED IN BOOK 722 AT PAGE 353, COUNTY OF JEFFERSON, STATE OF COLORADO PAGE 4. MEMORANDUM OF LEASE Site Number: DN03471A Site Name" Wheat Ridge Municipal Tower Market: Denver