New Cingular Wireless PCS, LLC Option & Land Lease Agreement 12.06.2011

Market:

Colorado

Cell Site Number. COU5172 Cell Site Name: 19ih &

Sumac

Fixed Asset Number:10549694

OPTION

AND LAND LEASE

AGREEMENT

NEW CINGULAR WIRELESS 4365

HIS LAND

LEASE

19th Street, Boulder, Colorado

AGREEMENT ("Agreement"), dated

to

be

effective

the

day of

2011 (the "Effective

is entered into by the City of Boulder, a Colorado home rule Date"), and New 1777 Broadway, Boulder, CO 80302 ("City") address of having municipality, mailing Wireless of 12555 Delaware address a a limited PCS, LLC, Cingular liability company, having mailing Suite GA 30004 (" Cingular Way, 1300, Alpharetta, Tenant").

c_

a

BACKGROUND

the

City owns of Colorado

more

at 4365

property located

particularly described

as

19th Street in the City of Boulder, County of Boulder, State

Lot

Station No. 5

1, Fire

State of Colorado, ( collectively, the "Property").The

Subdivision, County of Boulder,

Property includes

a

fire station

operated by the

City of Boulder. City and Tenant agree as follows: 1.

OPTION

a)

TO LEASE.

City grants to Tenant

portion of the Property

an

option (the "Option")to build an addition

containing approximately four hundred ( 400)square feet

as

to and

lease, a certain

described

on

attached

1 ( the "Premises") for the placement of Tenant' s Communications Facility defined below. b) During the term of this Option, Tenant, at Tenant's sole cost, and its agents, engineers, surveyors and other representatives may enter upon the Property to inspect, examine, conduct soil borings, drainage testing, material sampling, radio frequency testing and other geological or engineering tests or studies of the Property (collectively, the "Tests"), to apply for and obtain licenses, permits, approvals, or other relief required of deemed necessary or appropriate at Tenant's sole discretion for its use of the and include, without Premises limitation, applications for zoning variances, zoning ordinances, use and construction permits from the City (collectively, the "Government amendments, special permits, initiate the Approvals"), ordering and/or scheduling of necessary utilities, and otherwise to do those things on or off the Property that, in the opinion of Tenant, necessary in Tenant's sole discretion to determine the physical condition of the Property, the environmental history of the Property, City's title to the Property Exhibit

or

are

and the feasibility

suitability of the Property for Tenant' s Permitted Use, all at Tenant's expense. Tenant will not be liable to City or any third party on account of any preexisting defect or condition on or with respect to the Property, whether or not such defect or condition is disclosed by Tenant's inspection, Tenant or

will restore the Property to its condition

below),reasonable

wear

and tear and

as

it existed at the commencement

casualty

not caused

by Tenant

of the Option Term (as defined

excepted.

In addition, Tenant shall

indemnify, defend and hold City harmless from and against any and all injury, loss, damage or claims arising directly or indirectly out of the Tests. of City granting Tenant the Option, Tenant agrees to pay City the sum of In consideration c) Three Thousand and No/100 Dollars ($ 00) 3, 000. within thirty (30) days of the Effective Date, The Option will be for an initial term of one (1)year commencing on the Effective Date ((he "Initial Option Term")and may be renewed by Tenant for an additional one (1)year upon written notification to City

I

l'-,21110 IOP6011 ar.d Laud Lease

and the

payment of an additional Three Thousand and No/100 Dollars ($3, 00) 000. no later than ten (10) days prior to the expiration date of the Initial Option Term.

d) The Option may be sold, assigned or transferred at any time by Tenant without the approval or consent of City, to any entity controlling, controlled by or under common control of Tenant that

acquires

business

on

Tenant' s the

FCC

licenses

and

continues

Property. Otherwise, the Option

written consent of City; such

shall

to

may

licensed

a federally sold, assigned

operate

not be

or

of the

be within the sole discretion

communications

transferred From

without

the

and after the

City. party and the Tenant has notified the City if the transfer is to its parent company or otherwise obtained the permission of the City, and the third party has assumed all of the obligations and terms of this Agreement in writing to the City, Tenant shall immediately be released from any and all liability under this Agreement, including the payment of any future rental or other sums due, without any further action. e) During the Initial Option Term and any extension thereof, Tenant may exercise the Option by notifying City in writing. If Tenant exercises the Option then the Tenant may occupy the Premises subject to the terms and conditions of this Agreement. If Tenant does not exercise the Option during the Initial Option Term or any extension thereof, this Agreement will terminate. f) If, during the Initial Option Term or any extension thereof, or during the term of this Agreement if the Option is exercised, City decides to subdivide, sell, or change the status of the zoning of the Premises or Property or in the event of foreclosure, City shall notify Tenant in writing. Any sale of the Property shall be subject to Tenant's rights under this Agreement. City agrees that during the Initial Option Term or any extension thereof, or during the Term of this Agreement if the Option is exercised, date the

consent

Option has been sold, assigned

City shall not initiate or consent consent

intended

2.

transferred by Tenant to

a

third

to any

change in the zoning of the Premises, or Property or impose or prevent or limit Tenant from using the Premises for the uses set Tenant in this Agreement. as forth hereinafter by

to any other restriction

PERMITTED

a) business

or

that would

USE.

Tenant's use of the Premises

without

interference

the Communication

to

is in connection

with its

federally licensed

the City's use of the Property and for no other purpose. is hereinafter

communications Tenant

may use

for the transmission and

defined) reception of communications signals and the installation, construction, maintenance, operation, repair, replacement and upgrade of its communications fixtures and related equipment, cables, accessories and improvements,

Facility (as that term

which may include

fencing

a

and any other

suitable items

support structure, associated antennas, equipment

necessary

shelters

to the successful and secure use of the Premises.

or

cabinets

Tenant

and

further

right but not the obligation to add, modify and/or replace equipment in order to be in compliance with any current or future federal, state or local mandated application, including, but not limited to, emergency 911 communication services, at no additional rent to the City (collectively, the " Permitted has the

Use"). b) Exhibit

Permitted Use is limited

The

1 as the Communication

For purposes of this will accommodate

the residents

the space

Agreement, the "Communication

the climate-controlled

the City in the location identified

c)

to

Facility and the antenna

on

on

Facility" shall be the portion of the Premises

and

of the

to

the Tenant to

on

that

systems of the Tenant and

Exhibit 1.

Use is subordinate to the City's

properties

portion of the Premises identified

storage space for telecommunications

The Permitted

granting authority

the

mast where Tenant may colocate its antenna(s).

and

use

City surrounding interfere, obstruct, delay or

areas.

Property as a fire station serving Nothing herein shall be construed as

of the

hinder the

City's use of the Property.

shall provide City seventy-two ( 72) hours notice prior to any construction, installation equipment, or other activity permitted in this Agreement which occurs outside of the Premises.

Tenant

2010 121Option

and Land I.ease

of

3.

CONSTRUCTION OF ADDITION

FOR COMMUNICATION

Tenant shall construct an addition

a)

to the

FACILITY.

building that will include the

existing

Communication thereto

Facility. Prior to the initial installation of the Communication Facility, or any changes for which the Boulder Revised Code requires a permit, Tenant will supply the Deputy Police Chief

of Support Services (" Deputy Chief')with plans and specifications ("Plans")for review and

behalf of the Police

approval on

of construction. The Plans shall include

an Department prior that will accommodate climatecontrolled for existing building storage space telecommunications systems of the Tenant and the City, with such uses separated by chain link type fencing to allow for air flow, and two separate storage spaces for City. The approval by the Deputy Chief will not be unreasonably withheld, conditioned or delayed. If the Deputy Chief does not respond within ten (10)of his working days after receipt of the Plans, the Plans will be deemed approved. After approval, the Plans will be considered incorporated in this Agreement as Exhibit 1. If the Deputy Chief

addition

to commencement

to the

the Plans then the Tenant will provide revised

disapproves reasonable

discretion.

to be within Tenant's

Plans, such revisions

In the event the Deputy Chief disapproves

the Plans upon

a

second

submission,

Tenant may terminate this Agreement. In addition

City serving as landlord of the Premises, the City is the permitting entity Nothing herein shall be construed as a limitation on the City's or a waiver of the authority, City's requirements regarding construction of the Communication Facility or b)

for all construction

to the

the Premises.

on

approval of the Plans therefore. exercise of the

After

Option and for period of ninety (90)days following the start of such portions of the Property as may reasonably be construction, City grants Tenant the right to required during construction and installation of the Communications Facility. Tenant has the right to c)

a

use

install

and

transmission

cables, antennas, electric lines, and communication lines and make improvements Facility as depicted on Exhibit 1. Tenant agrees to comply with all applicable governmental laws, rules, statutes and regulations relating to its use of the Communication operate

to the Communication

modify, supplement, replace, upgrade, or expand the equipment within the Facility as defined herein. Tenant may not however, increase the number of antennas or location of antennas on any antenna mast or portion thereof designated on Exhibit 1 for use by the City. Tenant will be allowed to make such alterations to the Premises to construct the Communication Facility or to insure that Tenant's Communication Facility complies with all applicable federal, state or local laws,

Facility.

Tenant

may

Communication

rules or regulations.

d) construction

e) with

Tenant

shall be

solely

responsible

for

all

costs,

fees

and

taxes

due

related

to

the

of the addition.

During construction, Tenant shall have installed a separate meter for such storage area and for the responsibility for payment of such utilities to utility provider(s)

the gas and electric

arrange be the Tenant' s.

f)

Upon receipt of a certificate

addition shall become the property of the

of occupancy

or

letter

or

completion

City and part of the improvements

to the

for the

addition, the

Property owned by the

city. 4.

TERM.

a)

The initial lease term will be five (5) years (" Initial Term"), commencing

Date. The Initial Term will terminate

b)

This

on

5th)

the fifth (

Agreement will automatically

each five (5)year term

shall be defined

as

an

anniversary of the Effective

renew

Extension

"

on

the Effective

Date.

for three (3)additional five (5)year upon the same terms Term"),

term(s)

and conditions

unless Tenant notifies City in writing of Tenant's intention not to renew this Agreement at least sixty (60) days prior to the expiration of the existing Term. c) The Initial Term and any Extension Terms collectively referred to as the Term Term"). are

3

201012Option and Land Lcasc

5.

RENT.

Rent

Commencement

a)

Commencing

in the month

following the date

that Tenant

commences

construction ( the

City 5th) day of each calendar at the Seven Hundred Fifty and No/100 Dollars ($ 1, 750) t(he "Rent"), below. In any partial month occurring after the Rent Commencement Date, Rent will be Tenant Date"),

will pay

on

or

before the fifth (

month in advance, One Thousand address

set forth

prorated. The initial Rent payment will the Rent Commencement

Rent will increase

b)

be forwarded

the "Rent Commencement

by three percent (3 per year starting on the first year anniversary of %)

Date".

Rent payments shall be made

c)

by Tenant to City within forty-five (45)days after

Date.

City of Boulder

Fire

payable to City of Boulder and are to be sent to:

Department

Attn. Frank Young, Deputy Fire Chief P.O. Box 791

Boulder, Colorado

80306

In addition to the monthly Rent amount, after exercise of the Option, Tenant shall be d) the separate metering and cost of all utilities serving the Communication for Facility (the responsible Tenant

6.

Costs").

APPROVALS.

a) Premises

City agrees that Tenant's ability to use the Premises

and

for Tenant's

Property

maintain all Government

applications

to

obtain

Permitted

Approvals. City

Government

and Tenant's

Use

is contingent upon the suitability

ability

at its

sole

cost

of the

obtain

to

and

authorizes

Tenant to prepare, execute and file all required for Tenant's Permitted Use under this Agreement and

Approvals applications

agrees to reasonably assist Tenant with such title

b) Tenant, at its sole cost has the right to obtain a title report or commitment for a leasehold policy from a title insurance company of its choice and to have the Property surveyed by a surveyor

of its choice.

7.

TERMINATION.

This

Agreement

may be

terminated, without

penalty

or

further

liability, as

follows:

by City upon thirty (30) days prior written notice, if Tenant remains in default under Agreement after the applicable cure periods; b) by Tenant upon written notice to City, if Tenant is unable to obtain, or maintain, any Governmental Approval necessary for the construction or operation of the Communication if Facility, Tenant determines, in its sole discretion that the cost of obtaining or retaining the same is commercially unreasonable; c) by Tenant upon written notice to City for any reason or no reason, at any time prior to a)

Section

16 of this

or

commencement of construction

d)

by Tenant

upon

by Tenant; sixty ( 60)days prior written

notice to City for any reason

or no

reason, so

long as Tenant pays City a termination fee equal to three ( 3)months' Rent, at the then-current rate, provided, however, that no such termination fee will be payable on account of the termination of this Agreement by Tenant under any one or more of Sections 6 Approvals, 7( a) Termination, 7( b) Termination, 9 Interference, 12(b)Environmental, or 19 Casualty;

e) reasonable

by City if Tenant

fails

cure a default of any of the terms of this Agreement within a Interference, a reasonable time shall be no more than twenty-four the City. For any other default, a reasonable time shall be no more

to

time. For a default related to

24) hours of notice of default

from

than fourteen ( 14)days of notice of default from the

City. 4

201012Option and land Lease

8.

INSURANCE.

insurance: ( i) All

During

the

Term, Tenant will insurance

Risk" "

for

carry, at its

own

cost and expense, the

following cost; (ii)Workers'

its

property property's replacement Compensation Insurance as required by law; and (iii)Commercial General Liability (CGL) insurance with respect to its activities on the Premises, such insurance to afford minimum protection of Three Million Dollars ($ 000) 3, 000, combined

single limit, per occurrence and in the aggregate, providing coverage for and bodily injury property damage. Tenant's CGL insurance shall contain a provision including City as an additional insured to the extent of the indemnity provided by Tenant under this Agreement. 9.

INTERFERENCE.

a) The City will provide Tenant, upon execution of this Agreement, with a list of all existing frequencies/frequency bands on the Property and those frequencies/frequency bands City plans to

radio use

on

the

frequencies operate

Property. so

within

disclosed

Tenant

warrants

that

its

use

of the Premises

their

and in accordance

with all

respective frequencies provide City, upon execution of this Agreement, with

Tenant will

will

not

interfere with

the

radio

by City, as long as the existing radio frequency user(s)operate and continue a

applicable

to

laws and

list of all radio

regulations. frequencies that

Tenant proposes to use on the

Property. City's use of the Property includes a manned Fire Station. Tenant will not allow any of Tenant's equipment, including any HVAC system, to disturb or create noise that interferes with the day dayto-operation of the Property by the City. In the event that it is reasonably determined by the City that emissions from any of Tenant's equipment could cause harm to humans, Tenant shall take such steps The

b)

reasonably required to mitigate such harm. c) City will not grant, after the date of this Agreement, a lease, license or any other right to third any party for the use of the Property, if such use may adversely affect or interfere with the frequencies identified by Tenant. City will notify Tenant in writing prior to granting any third parry the right to install and operate communications equipment on the Property. d) Tenant will not use, nor will Tenant permit its employees, tenants, licensees, invitees, or agents independent contractors to use, any portion of the Premises in any way which conflicts with the Permitted Use or interferes with the operations of City or the rights of City under this Agreement. Upon receipt of notice from the City of Tenant's violation of this provision, the Tenant shall cause such interference to cease within twenty-four ( such interference within twenty-four 24)hours. Failure to hours after receipt of notice of interference from City shall be a default of this Agreement. Tenant shall cease all operations which are suspected of causing interference ( except for intermittent testing to as

cease

determine the cause of such

interference) until the interference

For the purposes

has been corrected.

Interference" may include, but is not limited to, any Agreement, " use on the Property that causes electronic physical obstruction with, degradation of, the communications from the Communication radio frequency interference includes signals Facility. Further, interference originating from equipment that measurably impairs the operation of any of the City's or any

e)

of this

or

lessee's radio Interference

receivers, equipment

or

antennas.

is the presence of interference

Interference

or

can

be continuous

that

or

intermittent.

at least 3 dB

Measurable

during on/off testing.

degrades receiveivity by Except when City and Tenant mutually agree to extraordinary methods, reference receiver sensitivity shall be measured by 12 dB SINAD per TIAC603-(analog) or by the standard bit -error rate ( 2004 TIA5%) per A2002 I02. CAAA-(digital). Interference as used herein refers to interference specifically described, as well as any other recognized effect on equipment at the Communication Facility which impairs its effectiveness for public safety and emergency

f)

communications.

to adding or changing any frequencies at the Communication Facility, Tenant shall frequency intermodulation study, at the expense of Tenant, to be conducted by a consulting engineer or other qualified expert mutually agreed to by City and Tenant. A copy of the study shall be provided to the City, and the City may communicate directly with engineer or other expert regarding the

conduct

results

a

Prior

radio

of the

study. If the study shows that any of Tenant's frequencies

or

equipment at the Communication 201012rmd I. cusc Option and i,

Facility

will interfere with the City's operations

interference

existing at the Property or disclosed to the Tenant, and such

be mitigated to the satisfaction of the City at its sole discretion, Tenant shall not be permitted to add or make the change in frequencies. If City, based on reasonable inquiry and evaluation, becomes aware of a potential interference g) caused directly or indirectly, wholly or partially, by Tenant's equipment or operations, City may problem Tenant to reimburse require City for the cost of an interference study, to include radio frequency The study shall be conducted by a consulting engineer or other expert mutually agreed upon measurements. by City and Tenant. If the interference study concludes that the problem or a potential problem is caused directly or indirectly, wholly or partially by Tenant's equipment or operations, Tenant shall immediately take all necessary steps to mitigate the interference. If the interference cannot be resolved, or if Tenant does not take the steps necessary for mitigation, City may terminate this Lease as provided herein. In the event of interference h) problems at the Property, Tenant shall cooperate fully with the and other lessees to correct and interference problems, including without limitation City diagnose or transmit down temporarily reducing shutting power of Tenant to help diagnose interference issues. Tenant will attempt to resolve potential or actual interference problems with other lessees. cannot

10.

Tenant agrees to indemnify, defend and hold City harmless from and INDEMNIFICATION. against any and all injury, loss, damage or liability (or any claims in respect of the foregoing),costs or expenses (including reasonable attorneys' fees and court costs) arising directly or indirectly from acts or omissions to act of Tenant, or the construction, installation, use, maintenance, repair or removal of the Communication Facility. 11.

WARRANTIES.

a) and in good

Tenant and

City each acknowledge

and represent that it is duly organized, validly

standing and has the right, power and

authority to enter into this Agreement

existing

and bind itself

hereto

through the party set forth as signatory for the party below. ( b) City represents, warrants and agrees that: i) City solely owns the Property in fee simple; the not not is and will be encumbered ii) Property by any liens, restrictions, mortgages, covenants, conditions, easements, leases, or any other agreements of record or not of record, which would adversely affect Tenant's Permitted Use and

enjoyment of the Premises

under this Agreement; ( iii)as

long

is not in default then

as

Tenant

City grants to Tenant actual, quiet and peaceful use, enjoyment and possession of the Premises; iv) ( City's execution and performance of this Agreement will not violate any laws, ordinances, covenants or the provisions of any mortgage, lease or other agreement binding on City; and ( v)if the Property is or becomes encumbered by a deed to secure a debt, mortgage or other security interest, City will provide promptly to Tenant a mutually agreeable subordination, nondisturbance and attornment agreement.

G

and Land Lease 2010Ophon 121-

12.

ENVIRONMENTAL.

a) City and Tenant agree that each will be responsible for compliance with any and all applicable governmental laws, rules, statutes, regulations, codes, ordinances, or principles of common law regulating or imposing standards of liability or standards of conduct with regard to protection of the environment

or

worker health and safety, as may

such

to that

13.

ACCESS.

conducted

now

or

at any time

hereafter be in effect, to the extent

in or on the

apply party's activity Property. b) In the event Tenant becomes aware of any hazardous materials on the Property, or any environmental, health or safety condition or matter relating to the Property, that, in Tenant's sole determination, renders the condition of the Premises or Property unsuitable for Tenant's use, or if Tenant believes that the leasing or continued leasing of the Premises would expose Tenant to undue risks of to a or third Tenant will the have liability government agency right, in addition to any other rights it party, have at law in to or may equity, terminate this Agreement upon written notice to City. At all times

throughout the Term of this Agreement, and at no additional charge to employees, agents, and subcontractors, will have twenty-four (24) hour per day, week seven (7)day to the Premises via the access depicted pedestrian and vehicular access (" per Access")

Tenant, Tenant and its on

Exhibit

14.

1.

REMOVAURESTORATION.

Tenant that is not affixed

to the

All

building

equipment brought

to

will be and remain Tenant's

the

Communications

Facility by personal property and, at Tenant's

option, may be removed by Tenant at any time during the Term. Non-removable property shall include any electrical or gas meters, HVAC systems, wire racks, light fixtures, light switches, electrical outlets, antenna masts and wiring, and grounding systems installed by the tenant. Within thirty (30) days of the termination of this Agreement, Tenant will remove all of Tenant's equipment and Tenant will, to the extent reasonable, restore the Premises to its condition at the commencement of this Agreement, reasonable wear and tear and loss by casualty or other causes beyond Tenant' s control excepted. Any

equipment not removed by Tenant within thirty days of termination abandoned

by the Tenant and become

of this

Agreement shall be deemed

the property of the City. All costs incurred by the City for disposal

of such

equipment shall be paid by Tenant to the City.

15.

MAINTENANCE/ UTILITIES. Tenant will

keep and maintain the Premises in good condition, reasonable wear and tear damage excepted. City will maintain and repair the Property and access thereto in good and tenantable condition, subject to reasonable wear and tear and damage from the elements. City will be responsible for maintenance of landscaping on the Property, after expiration of warranty periods, a)

and

from the elements

if any.

b)

Tenant will be responsible for Tenant' s

service

and any taxes due

16.

DEFAULT

a)

The

as a

result

of this

own

metered

gas and electric

supply and telephone

Agreement.

AND RIGHT TO CURE.

following

will be deemed

default by Tenant and a breach of this Agreement: (i) nonunpaid for more than thirty (30)days after receipt of written notice from City of such failure to pay; or (ii)Tenant's failure to cure an interference problem as provided herein within twenty-four ( 24) hours written notice from the City; or (iii)Tenant's failure to perforrn any other term or condition under this Agreement within fourteen ( 14) days after receipt of written notice from City specifying the failure. No such failure, however,will be deemed to exist if Tenant has commenced to cure such default within such period and provided that such efforts are prosecuted to completion with reasonable diligence. Delay in curing a default of subsection ( iii)will be excused if due to causes beyond the reasonable control of Tenant. If Tenant remains in default beyond any applicable cure period, City a

payment of Rent if such Rent remains

7

201012Option and Land Lease

will

have

the right to exercise termination

any and

all

rights and remedies

available

to

it under law

and

equity,

of this

Agreement. including failure b) The following will be deemed a default by City and a breach of this Agreement: (i) to the Premises to provide access to cure an interference problem that violates the terms of this within hours after receipt of written notice of such default; or (ii)City's Agreement twenty-four (24) failure to perform any term, condition or breach of any warranty or covenant under this Agreement within forty-five (45)days after receipt of written notice from Tenant specifying the failure. No such failure, however, will be deemed to exist if City has commenced to cure the default within such period and provided such efforts are prosecuted to completion with reasonable diligence. Delay in curing a default will be excused if due to causes beyond the reasonable control of City. If City remains in default beyond any applicable cure period, Tenant will have any and all other rights available to it under law and equity. or

17.

NOTICES.

class certified

or

notices, requests, demands and communications hereunder will be given by first registered mail, return receipt requested, or by a nationally recognized overnight courier,

postage prepaid, to

All

be

effective

when properly

Notices will be addressed to City and Tenant

as

sent

and

received, refused

or

returned undelivered.

follows:

If to CITY:

If to TENANT:

Ms. Jane Brautigam, City Manager

Attn: Network Real Estate Administration

City of Boulder

RE: Cell Site #

COU5172

PO Box 791

Fixed Asset

10549694

Boulder, CO 80306

12555

With

Cingulair Way, Suite 1300 Alpharetta, GA 30004

copies to:

With copy to:

David D. Hayes

Deputy Chief of Police

Cingular Wireless PCS, LLC Attn: Legal Department

Boulder Police Department

RE: Cell Site #

1805

New

33rd Street

COU5172

Cell Site Name: 19th &

Boulder, CO 80301

Fixed Asset

Sumac

10549694

Mr. Norm Alexander, Radio Shop Supervisor

S. If' U Mail)

City of Boulder

PO Box 97061

PO Box 791

Redmond, WA 98073-9761

Boulder, CO 80306 If overnight courier) 16331 NE 72nd Way, RTC1 Redmond, WA 98052

The copy sent to Tenant's

administrative step which alone does not constitute Legal Department is the may change place for the giving of notice to it by thirty (30) days notice to the other as provided herein.

notice. Either

legal prior written

an

party hereto

8

2010 121Option and Land Leasc

18.

CONDEMNATION.

In

summons

and

provide

copy of the ordinance

a

effective

the

determines

City

event

that another government is

complaint

condemn

the

Property

to condemn

the

Property, the

to

attempting

or

receives

City

a

will

approving condemnation by the city within five ( 5)working days of its and complaint from another government within five working days of

date, or the summons

service. 19.

CASUALTY.

City will provide notice to Tenant of any casualty or other harm affecting the forty-eight ( 48)hours of the casualty or other harm. If any part of the Communication Facility or Property is damaged by casualty or other harm as to render the Premises unsuitable, in Tenant's sole determination, then Tenant may terminate this Agreement by providing written notice to City, which termination will be effective as of the date of such casualty or other harm. Upon such termination,Tenant Property

within

will

entitled

be

to

collect

insurance

all

reimbursed for any prepaid Rent transmission

payable to Tenant on account thereof and to be prorata City agrees to permit Tenant to place temporary on the Property upon Tenant's receipt of Governmental Approvals,

on

proceeds

basis.

a

and reception facilities

only until such time as Tenant is able to activate a replacement transmission facility at another location; notwithstanding the termination of this Agreement, such temporary facilities will be governed by but

all of the terms and conditions

Agreement, including Rent. If City or Tenant undertakes to rebuild Facility, as applicable, City agrees to permit Tenant Tenant' s of Governmental Approvals to place temporary transmission and reception facilities upon receipt Rent until the reconstruction of the Premises and/or the Communication on the Property at no additional Facility is completed. If City determines not to rebuild or restore the Premises, City will notify Tenant of such determination within thirty (30)days after the casualty or other harm. or

restore

20.

the Premises

NO OWNERSHIP

the use of the Premises or vest

of this

and/or the Communication

or

OR PROPERTY

RIGHTS.

Nothing contained

in this

Agreement, including Agreement, create

other action of the Tenant or any payments made under this

in the Tenant any ownership

or

property rights in the Premises, the addition

to the building, or any

property interest of City. 21.

NOTICES

including

without

FROM THIRD

limitation,

PARTIES.

In the event

that Tenant

receives any written

notice,

of violation, related to the Communication

notice

Facility, by Tenant, from an entity with jurisdiction over the Tenant the Premises, the Communication Facility, or the frequencies, Tenant shall provide copy of such notice to City within three ( 3)days of receipt thereof. Tenant shall immediately a

warning

Tenant's use of the Communication

or

Facility or the frequencies

disclosed

a

take all steps necessary to resolve any notice in accordance with the terms of this Agreement. In the event that resolution of the notice would require violating any provision of this Agreement, Tenant shall work with City to resolve 22.

the notice

or

terminate this Agreement

if the notice cannot be resolved.

MISCELLANEOUS.

a) Amendment/ Waiver. This Agreement cannot be amended, modified or revised unless done in writing and signed by City and Tenant. The failure by a party to enforce any provision of this Agreement or to require performance by the other party will not be construed way affect the right of either party to enforce such provision thereafter.

b)

Bind and Benefit. The terms

Property and bind and inure to the administrators, successors and assigns.

and conditions

benefit

of

City

9

contained

and

in this

Tenant, their

to be

a

waiver, or in any

Agreement will run with the respective heirs, executors,

12201: 1Oplion and Lund Lease

Agreement. This Agreement and the exhibits attached hereto, all being a part hereof, agreement of City and Tenant hereto and will supersede all prior offers, and with agreements negotiations respect to the subject matter of this Agreement. Exhibits are numbered

c)

Entire

constitute

the entire

correspond to the Section wherein they are first referenced. d) Governing Law. This Agreement will be governed by the laws of the state of Colorado with venue in the 20th Judicial District. to

e) Interpretation. Unless otherwise specified, the following rules of construction and interpretation apply: (i) captions are for convenience and reference only and in no way define or limit the of the terms and conditions

construction

hereof; ( ii)use of the term "including"will be interpreted to mean are an including integral part of this Agreement and are incorporated by reference into this Agreement; (iv)use of the terms " termination" or "expiration" are interchangeable; ( v) reference to a default will take into consideration any applicable notice, grace and cure periods; (vi)to the extent there is any issue with respect to any alleged, perceived or actual ambiguity in this Agreement, the ambiguity shall not be resolved on the basis of who drafted the Agreement; and (vii)the singular use of words includes the plural where appropriate. f) Survival. Any provisions of this Agreement relating to indemnification shall survive the termination or expiration hereof. In addition, any terms and conditions contained in this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall but not limited

to"; ( exhibits iii)

so

survive. with

a

upon execution of this Agreement and at such other times

as

g)

which

W-9. City agrees to provide Tenant

completed

IRS Form

W-9, or its equivalent,

may be reasonably requested by Tenant. h) Counterparts. This Agreement may be executed in two (2)or more counterparts, all of shall be considered on and the same agreement and shall become effective when one or more

counterparts have been signed by City and Tenant. All parties need not sign the same counterpart.

10

2010 121Option and Land Lease

IN WITNESS

WHEREOF, City and Tenant have caused this Agreemcnt to be effective

as

last date written below.

CITY:

TENANT:

The

New

City of Boulder

Cingular Wireless PCS, LLC, a Delaware limited liability company

By: Jane Brautigam Its: City Manager

By: A, Its:

obility

ation

ana

av.2~, 2o I ~

By:

By:

Print Name:

Ja`~ e

Print Name:

Its:

Its:

Date:

Date:

t

tr E'

CI

t

1

Approved as to Form

f

I

I

201012Option and Land Lease

of the

EXHIBIT

DESCRIPTION

Page _ to

and New

Option and Land Lease Agreement dated.ij Cingular Wireless PCS, LLC, Tenant.

the

I

OF PREMISES of

201

by and between the City of Boulder, as

as

The Premises are described and/or See attached

depicted as follows:

Diagram

t:

i, i

i..

City,

gb`A" E11

CIO

7t

i

3

i

I3s: R~

f

t

I;

e

L 1

E

N

J

L

V

C

F

I

r

r~

5

co

o~ i

3¢~

1~

I

WAG bill

I

N". 1

TI

I

YAM )-.~"

ic.• ~

J

W

Contract

Page 1 of 1

Tracking IGA > Thank You

OFFICE OF THE CITY ATTORNEY CONDITIONAL

Document

I

Routing Cover Sheet

1

W

T0:

Please print and attach to your document. You

Routing

view the status

Number

Originating Routing

can

using the Contract Tracking Status-Page.

20111206-6975 Police

Dept

Contact

of your contract

Person

Project Manager /

Contract

Kathy Haddock

Phone

Dave

Hayes

Email

New

Cingular Wireless

Number

3873 303441-

HayesD@bouldercolorado. gov

Administrator Counter

Parties

Contract

Title /

and

Land

Lease

Option and

Lease

for

Option

Type

PCS, LLC Agreement

Number

Description

19th

Street

and

New

to

New

Singular Wireless

to build

addition

for city to

Firestation

No. 5 at 4365

provide -storage for fire equipment - and climate-controlled radio facilities for the city

11,' 6/ Cingular. Approved by Couneil ' 12/ Action

Date

Note

1)

One of the

Items

sent to Dave

originals

Hayes; electronic

copies

to Dave

Hayes, Frank Young, and Kathy

Haddock

Z) 3)

Expiration

Date

2016 12/ 06/ Expense

Amount

Type

Dept. Head Signatur

NOTE; Originating Department:

Identify with

a

check

mark

areas

C

Z

Budget

all

document

needs to be routed,

Qt1k CC~~,_ S S-

3K Sa• I86~

CAO

City Manager Central

Records_

A link to the electronic form

once

document

will arrive via email to the email addresses copy of the document( s) has been scanned into LaserFiche.

Contract irackinc, !come ;

Wtn l Sipnat3,ro ROUtilIQ F:

Ti'a

k Contract Stators

on

the

routing

I Up ate=i ontrartGU-

boulder.co. servlet/ us/ Hintrawcb. Mis httt): ci. ContraetTracking/

6/ Controller12/