Attachment C - 1997 Boulder County Special Use Agreement

Document Break Sheet Document Identification: Document Name:

DN01055A 02 LSE 19970409 0

Document Date:

19970409

Image Name: Location Identifier:

DN01055A

Truncated Doc Name:

LSE

Document Sequence:

02

ABSTRACT

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.,01685 504/10/9709:26 AM RE.AL 3TATE RECORDS F2197 CHARLOTTE HOUSTON BOULDER CNTY CO RECORDER

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DEVELOPMENT AGREEMENT RELATING TO SPECIAL USE REVIEW AND SITE SPECIFIC DEVELOPMENT PLAN DOCKET NO. SU-96-19

TIIIS AGREEMENT is made on this

4'~ day of

AttiI

frl. by and between

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the Board of County Connnissioners of Boulder County, Colorado, hereinafter referred to as "County", and Valmont Butte Corporation, U S WEST Communications - Wireless, Sprint Spectrum L.P. and Western Wireless PCS III License Corporation, hereinafter individually and collectively referred to as "Developer" . WHEREAS, Developer has submitted to County for approval of a Special Use Review and Site Specific Development Pian to allow three telecommunication providers (Developer) to collocate facilities on a signle site, hereinafter referred to as "development;" as set forth in Docket #SU-96-19 and Resolution 96-170 approving the Docket; and WHEREAS, County has fully considered the proposed development and the requirements to be imposed upon the land and properties by reason of the proposed development; and WHEREAS, County is willing to approve the development upon the agreement of the Developer to the matters herein addresseU; and WHEREAS, County and Developer mutually acknowledge and agree that the matters hereinafter set forth are reasonable conditions and requirements to be imposed by the County in connection with its approval of the development, and that such matters are necessary to protect, promote and enhance the generaIwe~are;and

WHEREAS, County has determined that this agreement is consistent with the Boulder County Comprehensive Plan and applicable County regulations. NOW, THEREFORE, in consideration of the premises, the mutual covenants herein contained and the approval of the development, it is agreed as follows: I.

Type of Development - This agreement covers development of a low power

telecommunications facility.

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This facility is to be constructed using a telecommunications specific

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monopole that wIll accommodate the antenna arrays for three teiecommurucauon proViders AddItionally, at the base of the monopole, equlpment cabmets Wlll be placed to house telecommumcatlOns electromc eqmpment

The development shall be conslstent WIth the comnulments of record and

cond1tions of approval estabhshed ill The SpeCial Use approval of Docket SU-96~ 19 Valmont Butte Corporat.J.onJSprint Spectrum/Westem WIreless PCS III Collocation Site for TelecommumcatlOns Uses, includmg, but not lnruted to Resolut.J.on 96-170 (Exlnblt A), and the attached scaled site plans (Exhibit B), all of whtch are Incorporated mto tlus Agreement by tlus reference

a

The telecommmucat.J.ons faclhty has been relocated fifteen feet to the east to

accommodate the dramage swale to the- west The facIllty can be up to 85 feet htgh at tlus locatIOn b

The telecommumcauons tower and antennas shall be unpamted to match the

surroundmg landscape c

In accordance Wlth the Apphcants' conumtment of record made at the Pubhc

Hearmg on Docket SU-96-19, the ApplIcants has accommodated co-location requests for the approved telecommUnIcations facIlity d

The development (teleco1llD1umcat.J.ons faclhty use allowed III the Docket) shall

be reViewed by the Planrung Comnusslon and the Board of County COmmtSSlOners seven years after the

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date of adopt.J.on of tlus approval as set forth m Resolut.J.on 96· 170, to consider any teclmologlcal changes that might make the faclhty less Visually obtruSive

As part of thts review, the Board may Impose

reasonable revIsed condItions m response to any such technologIcal changes whtch may reduce the Visual Impacts of the fac1hty 2

usage

Ut.J.htIes - Separate utthty meter shall be Installed at the SIte to accommodate all electric

Separate telephone hnes shall be mstalled at the SIte to acconunodate all telephone usage

other utIlities will be reqUired by the development

No

All utIlity reqUirements are detaIled In attached

ExlubttB 3

Roads - All access roads are now eXlstmg and no addItional easements or nght-of-ways

are reqUired Access IS defined on the attached Exhtbit C

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is detailed in attached Exhibit B, approved in

Landscaping - All landscaping,

accordance with Exhibit A (Resolution 96-170). 5.

In consideration of the above conditions and covenants, the County agrees to grant a

vested property right for the proposed development to proceed pursuant to the tenns of this agreement. The approval shall have a 3 year vesting term, subject to the provisions for modification and tennination contained herein. The developer may request an extension of said vested right. 6.

The vested property right granted herein shall be terminated if Boulder County

determines that the developer is not in good faith compliance with the tenns of the agreement. 7.

The developer shall participate in the appropriate road impact fee fund if and when

Boulder County adopts a county-wide road impact fee system prior to the issuance of building permits pursuant to this agreement. 8.

Boulder County may conduct a periodic review of the development which is subject of

this agreement as necessary to enforce the terms hereof. 9.

Subsequent regulations enacted by Boulder County shall be applicable to the proposed

development if necessary to protect the health and safety of the inhabitants of Boulder County or if general in nature and applicable to all properties subject to County land use regulations. 10.

This agreement may be canceled or amended by mutual consent of the parties, or to

bring the proposed development into conformance with federal or state law. 11.

Developer's compliance with the terms of this agreement may be enforced by any legal

means, including but not limited to, revocation of developer's approval, denial of building permits, or action for breach of contract. 12.

The terms and conditions of this agreement shall be covenants which run with the lands

and inure to the benefit of and are binding upon the heirs, successor in interests and assigns of the parties hereto. l3.

This agreement, upon execution, shall be recorded in the records of the Boulder County

Clerk and Recorder. Developer shall file for recording with the Boulder County Clerk and Recorder, this

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Agreement, reduced sIte plans andlor any other documents requIred as part of the approval by the Board of County ComnussIOners of the above referenced development 14

LiabIlIty - The mdIviduals sIgnmg as Developers assume responsibIlIty for the execunon

of all reqUIrements contamed m t1ns Agreement 15

Enforcement - Boulder County or any purchaser of any land subject to tlle restncnons

or reqmrements of thIS Development Agreement, shall have the authonty to bnng an acnon m Boulder DIStrIct Court to compel tlle enforcement of tlus agreement If the development becomes mcluded m the boundanes of any CIty or town, Boulder County's nght to enforce tlus agreement shall automatIcally pass to the govenung body of the City or town. Boulder County alone shall have the nght to waIVe Its nghts to enforce thIS agreement, or to mmMy tlns agreement Wlth the consent of the Developer, WIthout obtmmng

the consent of any other ennty or person; proVided that If the development becomes mcluded m the boundanes of any CIty or town, such nghts of Boulder County shall automancally pass to the govermng body of the CIty or town IN WITNESS WHEREOF, the partIes have hereunto set thetr hands and seals tlus ~day of

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DEVELOPERS ION

Chalnnan Boulder County Board of County COmmISSIOners

BY __~~__~__7-~~~~_____ Its __"'--"~=-.L-L-=-'-'""--".P----''-'-_ _ _ _ __ SPRINT SPECTRUM L. P.

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By \"'" . Its rfjfTf.Y

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WESTERN WffiELESS pes ill LICENSE CORPORATIO

By --.l!-~~~~~~~~~ Its -----'~-'-=----'"-'-'-'-~'-""-'""Pt,___+---

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U S WEST Communications - Wireless

STA1E OF COLORADO COUNTY OF BOULDER

The (o~oing instrument was ~owledged before me this IJt.L. day of 012 )( -( . 19lJ by C1L)1 ....cV})//IL . '. , as Quk • 1~_;d.dl_l_ GlMtlfllBUaIalllCE:'COlQMp' ieh"pyx ~ -~'

of Valmont Butte Corporation.

Witness my hand and official seal.

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2:vh /J/)Jt!I ~ >:£ tit)L

Notary Public

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COUNTY OF BOULDER The foregoing instrument was acknowledged before me this ~day of ~ co, ( 19SJ by Q".l8,1 d· K. 6i-.e02as-t • as _ _ _ _ _ _ _ _ __ oftMb"_ElllHW~ia.xas

Chairman of theBulder County Board of

County commissioners.

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Witness my hand and official seal.

~/k.~ Notary Public ~ 5

• STATE OF COL9RADO COUNTY OF CL,e/}C[t-, j_

The foregomg mstrument was acknowledged before me tllls3/S'~day of ~O 7(1 'L(!;j , 19t:j,'by C[ , I J l{u J/L (/ ,as I ' { (T( '0/ }(} ::"/ 0::......of Sprint Spectrum1- P o , ' r J J

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WItness my hand and OffiCIal seal

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"'1'1 '-I " T~q foregomg-mstr~lIl~ent was acknowledged before me thIS ~.?ay of-,Ic.!./"!'!'fL",,-C.l;.lt.!..Ic=---_ __ 19Lt.,by ,\I I"t/ ,y, ~I-( r",i, ,as &(/''''') 0'(",1":('",_ of Western Wireless pes ill License Corporation _ 'J WItness my hand and OffiCIal seal My COffiIlllSSIon expIres _ _ _ _ _ _ _ _ _ _ _ _ _ __ BARBRA A. BURNS

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NOT AR.Y PUBUC

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STATE OF COLORADO

My CommiSSion Expires 71119

STATE OF COLORADO

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ThF foregomg mstnl9lent-was acknowledged before me th1~ day of 19'1J by ~ cbo. l:XtwyS"'...., as U11 t:n~ 40: of U S WEST CommunicatIOns - Wireless

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WItness my hand and OffiCIal seal

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Exhibit A la-170

A IUI8OLftIOil COIIDIumnLt.l' UPlOVDO I01JL1)D COUIi1"i LUD VSB DOCK1ft' '8V-.'-lt ("VUaJIOft BUft'B COUOD~IOJI/SPJlD1'l' 8PBC!rllUJI/ns'!DJI· PCS IIX SPBCIaL VSB"): a 8PECIaL vaB RBQUBST, WZTB A8SOC%A~BD 8ITS .JlBCI~IC DB'IBLOPKIDl'!' PLaB, If0 UDJ) DOCXBT 'SV-la-05 TO aLLOW ftO UDIUODL ftOVI!)_ IfO C'O-LOCS'!. OJI A 'lBI.BCOIDIU5%CA.'1'IOHS I'ACILITY UDOVlID J'OJt noPDn01lllJlD 8'1' 'mIB ftr,MOlft B'Oft. COllPOltA~%OB, LOC:&~ 80UD 0-. "t.MOII'1' ROaD, DB'! O~ '3JLD 8DBft, 80~T 01' ~ ftt.'Ml)ft B~., Dr 8J1C1l'%0Jr 27, ~111, .70••

WBBRDB, Loren Smith ot Valmont Butte Corporation; Jill Jelinek ot Sprint Spectrua, LP; and Michael Mccreedy ot We.tern PCS III License Corporation ("Applicants"), have requested app·roval to amend the August 15, 1996 approval granted in Special Use Docket #S'O-96-05, to allow the Applicants to co-locate with U S West communications on the approved telecommunications taci1ity on the property which is located .s described in the caption to this R.solution, above, in the General Industrial District in unincorporated· Boulder county; and

WKBRBaa, the proposed changes and additions to the facility will consist primarily of an increase in the approved height of the monopole from 44 teet to 85 teet, with the increase in height being necessary to allow the Applicants to co-locate on the sitei and WBBRBaa, the tacility as amended will consist of an 8S-foot tall steel monopole that has a 5-toot diameter base and tapers to a diameter ot approximately 2 teet at the tOPi three sets ot panel antennas placed on the monopole and spaced about 10-1/2 feet apart; and a series of cabinets of under 6 teet in height for storage of the Applicants'electronic equipment, with the entire facility enclosed in a 30-foot by 35-toot area by a 6-toot high chain link fencer and WBBRDS, an existing private drive located on both Public Service company and Valmont Butte corporation property is proposed to be utilized for access to the site for normal and routine maintenance, which, arter completion of construction of the facility, will occur 3 to 6 times a monthr and WHEREAS, the Federal Aviation Administration has indicated that the tower will not be required to be lighted or marked; and WEERBas, the above-described request was processed and reviewed as Boulder county Land Use Docket ISU-96-19("the Docketll), all as further described in the Boulder County Land Use Department Planning Sta:tf'. Memorandum and written recOlDlllendation to the Boulder county Board or County commissioners ("the Board") dated October 31, 1996, with its attachments ("the Staft Recommendation"); and 1

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WBERBAB, on september 18, 1996, the Boulder County Planning commission (lithe Planning Commission") held a duly-noticed public hearing on the Docket, and recommended conditional approval of the Docket to the Board; and WHEREAS, on October 3~, 1996, the Board held a duly-noticed public hearing on the Docket ("the PUblic Hearing"), at which time the Board considered the Staff Recommendation and the recoIDmendation of the Planning Commission, and also considered documents and testimony presented by the Applicants' Planning Consultant, the Applicants' Engineer, and a representative of Public Service company; and WlIERlmS, based on the Public Hearing t the Board finds that the proposed amendment to Docket #SU-96-05 to allow two additional providers to co-locate on a telecommunications facility meets the applicable criteria for special use approval set forth in Article 4 of the Boulder County Land Use Code ("the Land Use Coden), and can De approved, sUbject to the conditions stated below, and, further, that the Docket, with the submission of the standard development agreement, meets the criteria in the Land Use Code for a site-specific development plan, subject to the conditions stated below.

NOW, THEREFORE, BB IT RESOLVED that the Docket is hereby approved, on the basis set forth,in this Resolution, above, and subject to the following conditiorts: 1.

Prior to recordation of the Development Agreement, the Applicants shall secure and submit an access easement providing for legal access to the site.

2.

Any exterior lighting must comply with the provisions of Sectio_n 7-1600 of the Land Use Code (as amended). Additionally, any light source shall not be located at a height above 12 feet from existing grade. Any exterior lighting fixture must be switched; light or motion sensors shall not be used.

3.

The Applicants shall be Subject to the terms, conditions, and commitments of record.

4.

The Applicants shall submit a Development Agreement to be reviewed and approved by the County Attorney and Land Use staffs prior to recordation.

5.'

The site shall be appropriately landscaped with drought tolerant plant materials, and a landscape plan shall be approved by the County Land Use staff prior to recordation.

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6.

T.he Applicants shall comply with all usual

7.

T.he equipment pad site may be moved up to

a.

The telecOJlllllUJ1ications ~acillty use allowed in the Docket shall be reviewed by the Planning COJIDlission and the Board of county Comm~ssioners sev~n years atter the date of approval to consider any technological changes that might make the facility less visually obtrusive. As part of this review, the Board may impose reasonable revised conditions in response to any such technological changes which may reduce the visual impacts ot the tacility.

requirements o~ the Land 08e Code.

post-approval

fifteen ~eet to the east to accommodate the existing drainage swale.

A aotion to approve the Docket, as stated above, was made by Commissioner Mendez, seconded by Commissioner stewart, and passed by a 2-0 vote, with commissioner Danish being excused. ADOPTBD this c:./ day of ~OJct.m~, 1996, nunc pro tunc the 31st day o~ October, 1996. BoaRD O. COUBTY C0HH%88XOHBRS O. BOULDD COmr.rY:

e. n£Ut6J;iu.¥ki:

Ronald K. stewart, Cha1r

Paul D. DanIsh, commissioner (EXCUSED)

ATTEST:

JiLt!h. .1iL:.t Ud{"~lUJ-<.

Clerk to the Board

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OPTION AND LEASE AGREEMENT

This Option and Lease Agreement (the "Agreement'') is made as of the eleventh day of January, 1996 (the "Effective Date'') between Valmont Butte Corporation ("Lessor''), whose address is ~~9 ~ A~u~~%uqe A-I, and U S WEST Wireless Group, A Division of U S West Comm\ifti~s, fiic. ("u:ss~'), \vhose address is 1999 Broadway, Tenth Floor, Denver, Colorado. 80202. A. Lessor is the owner of certain real property located in the County of Boulder, State of Colorado, described in Exhibit A attached hereto and made a part hereof by this reference

(the ··Property''). B. Lessee desires to obtain a non-exclusive option (the "Option'') to lease a portion of the Property to be determined as mutually agreed by Lessor and Lessee, consisting of approximately nine hundred (900) square feet collectively (the "Premises"), as well as rights-ofways and easements for ingress, egress and utilities thereto. The Premises are described in Exhibit A attached hereto and made a part hereof by this reference. The Premises may be more specifically described following a survey which may be obtained at a later time at Lessee's sole expense. 1.

Premises. The parties understand that the exact area to be leased tmder the Agreement may not be identifiable by the Lessee at the time the parties sign this Agreement or that additional site planning may necessitate the relocation of the Lessee's intended facilities to another location on the Property satisfactory to Lessor. In either case, selection of the area to be leased shall be mutually agreed on by Lessor and Lessee. Wrthin thirty (30) days of selection of such area, the Lessee shall resubmit to the Lessor a corrected copy of Exhibit A, specifying the exact location of the area to be leased as agreed on by the parties, which will then replace the originally submitted Exhibit A.

2.

Consideration. The consideration to be paid by Lessor to Lessee for the rights and privileges set forth in this Option shall be the sum five hundred dollars ($500.00) hereinafter referred to as the "Option Money."

3.

Exercise of the Option. This non-exc1usive Option may be exercised by Lessee at any time on or before the (six months), 1996 ("Option Period',), by written notice from Lessee to Lessor. The date Lessor receives Lessee's notice to exercise the Option shall be the Conunencement Date of the Lease. Lessee may extend the Option Period for an additional six months ("First Option Extension"), by Lessee depositing its notice to extend the option in the U S mail, return receipt requested to Lessor prior to the expiration of the Option Period and making an additional payment offive hundred dollars ($500.00). Payment for the First Option Extension shall be tendered to Lessor at the time Lessee notifies Lessor that Lessee desires to extend the Option Period. At the end of this one year period (the initial Option Period plus the First Option Extension), Lessee may extend the Option Period for two additional six month periods ("Second and Third Option Extensions"), by giving notice to Lessor prior to the expiration of any Option Extension and by making additional payments of one thousand dollars ($1,000.00) for each additional six month Option Extension. Payment for the Second and Third Option Extension shall be tendered

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to Lessor at the time Lessee notifies Lessor that Lessee desires to extend the Option Period. 4.

Termination of Option. If Lessee fails to exercise the Option within the Option Period, including any extension thereof, all rights and privileges granted in this Agreement shall expire and be deemed completely surrendered, the Option and this Agreement shall automatically terminate, and Lessor shall retain all money paid by Lessee for the Option. No additional money shall be payable by either party to the other.

5.

Legal Description. Lessor grants Lessee the right, but not the obligation, at any time during the term of this Agreement, to obtain a survey ofthe Premises at Lessee's sole expense. The legal description that is derived from the survey will become Exhibit B which will be attached hereto and made a part of hereof, and shall control in the event of any inconsistency between it and the legal description contained in Exhibit A.

6.

Right of Entry. Lessor shall permit Lessee, during the Option Period or any extension thereof, free access to the Property and Premises, at Lessee's sole cost, to conduct surveys, subsurface boring tests. feasibility and final configuration assessments, environmental assessments, and other inspections of the Property and Premises as Lessee may deem necessary. At the expiration of the Option Period or any extension thereof, if the Lessee has not exercised the Option, Lessee will restore the Premises to their original condition as of the Effective Date (the date on which this Agreement was executed by Lessor and Lessee), reasonable wear and tear excepted.

7.

Lease Term. The term of this lease ("Lease'') shall begin on the Commencement Date and shall expire on the day preceding the tenth anniversary of the Commencement Date (the «Expiration Date''), WJJess extended in writing pursuant to Section 9 below. Beginning on the Commencement Date, Lessor shall deliver possession of the Premises to Lessee, together with the non-exclusive right for ingress and egress, seven (7) days a week, twenty-four (24) hours a day. on foot or motor vehicle, including, but not limited to, trucks and other installation equipment. and for the installation and maintenance of utility wires, cables. conduits, and pipes over, under, or along a twenty-foot-wide right~f-way and easement extending from the nearest public right-of-way to the Premises. Lessor agrees to execute withput delay any easement documents as may be required by any utility company necessary for the utility's installation and maintenance of such utility wires, cables, conduits. and pipes. Lessee understands that any easement and right~f-way granted herein can be modified by Lessor at any time during the term of this Lease at Lessor's cost. Lessee agrees to pay a one time five thousand dollar ($5000.00) fee to Lessor, upon Lessor's demand, to help offset Lessor's costs associated with moving the easements or right-of-way.

8.

Rent. Upon the Commencement Date as set forth in Section 3 above, Lessee shall pay Lessor $500.00 per month rent. Within thirty (30) days after Lessee obtains permission from the FCC to use the new frequency for which Lessee has applied, Lessee shall pay Lessor an advanced rent payment of sixty thousand dollars ($60,000.00). representing payment in full for the ten (10) year term of this Lease, minus all monthly rent payments made from the Commencement Date until the time that Lessee has obtained such FCC permission.

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9.

Right to Extend.Lessee shall have the right to extend the teITP of this Lease for two (2) consecutive periods offive (5) years each (the "Renew~l Periods"). Lessee may extend the Lease for the first five year period (the "first ReneWal Period") by notifying Lessor of Lessee's exercise of its right to extend the tenn of the Lease. Such notice must be in writing and must be received by Lessor at least sixty days (60) before the Expiration Date of the Lease. Lessee may extend the Lease for the second five year period (the "second Renewal Period', by notifying Lessor of Lessee's exercise of its right to extend the tenn of the first Renewal Period. Such notice must be in writing and must be received by Lessor at least sixty days (60) before the expiration date of the first Renewal Period.

10.

Renewal Rental. Lessor may review the monthly rent paid by Lessee upon the expiration of the Initial Tenn of the Lease and again at the expiration of each subsequent Renewal Term. Thirty days prior to the commencement of each Renewal Term Lessor may adjust Lessee's monthly lease payment for the Renewal Period. In no event shall said Lease Payment be increased by more than ten (10) percent over the previous five year period. The monthly lease rate Shall be- ~al each month during the respective Renewal Period.

11.

Lessee's Use. Lessee shall use the Premises for the purpose of constructing, maintaining and operating a communications facility and uses incidental thereto (the "Facility') consisting of an equipment shelter together with an antenna structure, antennas and necessary connecting appurtenances sufficient to a fully operable Facility in its intended licensed communications coverage areas. The contents of the equipment shelter may include, without limitation, radio transmission and computer equipment, batteries and generator equipment with basic design not to exceed the plan attached as Exhibit C. A security fence consisting of chain link or Comparable construction may be placed around any improvements constructed on the Premises by Lessee provided that such fence shall be located within the leased Premises. All improvements shall be made at Lessee's sole expense. Lessee shall maintain the Premises in reasonable condition.

12.

Indemnification. Both during the Option Period and during the term of the Lease and each Renewal Period (if any), the Lessee shall indemnify and hold Lessor hannless against any claim of liability or any loss. including attorney ~s, costs and expert witness fees, from personal injury or property damage caused by the negligence or willful misconduct of the Lessee, its entPloyees, servants, or agents. Both during the Option Period and during the term of the Lease and each Renewal Period (if any), the Lessor shall indemnify and hold Lessee hannless against any claim of liability or loss from personal injury or property damage caused by the negligence or willful misconduct of the Lessor, its employees, servants, or agents.

13.

Tennination. This Agreement may be terminated, without any penalty or further liability, on sixty (60) days written notice as follows: (a) by either party on default on any material covenant or tenn hereof by the other party, which default is not cured within ninety (90) days following receipt of written notice of default (without, however, limiting any other rights available to the parties pursuant to any other provisions hereof); (b) by Lessee if Lessee is unable to obtain or maintain any license, pennit, or governmental approval necessary to the construction or operation of the Facility or Lessee's business; or (c) by Lessee if the Premises are or become unacceptable to Lessee under Lessee's design or engineering speciflcation for its Facility or for the communications system to which the Facility belongs.

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I£tl11S Agreement is terminated by Lessee, for reasons set forth m Sectton 13 (a) above, Lessor shall pay Lessee the pro-rated balance of ~y advanced rent payment paId to the Lessor by Lessee dunng the InrtIal Term Such payment shall not include any Option Money identmed m Sectton 2 above or any money paId for any Option Extension ldentified. m SectlOn 3 above, and such payment shall not become due untll thirty (30) days after Lessee has removed all property and fixtures from the Prenuses and restored the Prelll1ses to theIr condItIOn as of the EffectIVe Date, reasonable wear and tear excepted Ifthts Agreement IS tefllllllated by Lessor, for reasons set forth ill Section 13(a), or if thIs Agreement IS terminated by Lessee, for reasons set forth m SectIOn 13 (b) or (c) above, or If this Agreement IS tefllllUated for any other reason, Lessor shall be entitled to retain any and all rent payments paId to the Lessor by Lessee durmg the Imttal Tenn, or any Renewal Period, and Lessee shall not be entrtled to any repayment of part or all of any rent payments whatsoever The date oftem;uvqtIQU (the "TernunatIOn Date") of this Agreement and any Renewal Penod shall be detefllllUed as follows. (a) Ifthe Agreement IS termmated pursuant to SectIon 13(a) above, the TenmnatlOn Date shall be the nmety-first (91st) day after wntten notIce of default was served on the defaultmg party and the default remams uncured, (b) If the Agreement IS tennmated pursuant to SectIOn l3(b) or (c) above, the TernunatlOn Date shall be the SIxty-first (61st) day after wntten notIce of terminatIon was served, (c) If the mitial term of the Lease or the term of the first Renewal Period exptres and Lessee has not exercIsed Its nght to extend pursuant to SectIOn 9, the TerrmnatlOn Date shall be the ExpIration Date of the !-ease or the date the first Renewal Penod expIres; or (d) If the Lease IS timely extended through the inrtial penod, and the first Renewal Pened, the Tennmation Date shall be the day the second Renewal Penod expires No later than SIxty (60) days after the Ternunatlon Date of thIS Agreement by expIratIOn of the term or otherwise, Lessee WlIl remove rts personal property and TIxtures and restore the Premises to their condrtlOn on the EffectIve Date, reasonable wear and tear excepted If tune for removal causes Lessee to rernam on the Premises after the terrnmation of this Lease, Lessee shaH pay rent at the then eXlstmg monthly rate unt11 such tIme as the removal of Lessee's personal property and fixtures IS completed At Lessor's optlon, wluch shall be exercised by wntten notIce to the Lessee no later the thIrty (30) days pnor to the terminatIon of this Lease, Lessee will leave the foundatton and security fence which shall become the sale property of Lessor 14

Insurance

Lessee agrees to maintam general lIabilrty msurance for claims ofbodtly

injury or death and property damage with combmed smgle IUl1lts of not less than one nulhon dollars ($1,000,000 00) combmed smgle occurrence hmrt, and Lessee agrees to

name Lessor as addttlOnal msured on rts msurance pohey at the time Lessee exerCIses its OptIOn In the event Lessee IS or becomes selflllsured, Lessee shall supply Lessor with a certIficate of self msurance which complIes WIth the pohcy lmutatlons set forth above 15

UtIlItIes and Taxes Lessee shall arrange to have rts uttlrtles separately metered and Lessee wIll be solely responSIble for all utilitIes reqUIred by Its use of the Prenuses Lessee Will pay any mcrease ill real estate taxes caused by the Improvements constructed upon the PremIses by Lessee In the event that the real estate tax assessment on Lessor's property reflects Lessee's unprovements, Lessor agrees to proVlde Lessee WIth a copy of the

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assessment in a timely manner. Lessee may contest, at Lessee's sole expense, any assessment imposed on the Premises or on Lessee's acti~es, provided that Lessee shall remain solely liable for payment of all such increased taxes due to Lessee's facilities and any penalties or fees assessed against Lessor as a resuh of Lessee's contest. 16.

Title and Quiet Enjoyment. Lessor represents and warrants to Lessee that (a) Lessor has full right, power and authority to exeCute this Agreement, and will provide Lessee with evidence of such authority upon written demand; (b) Lessor has good and marketable title to the Premises free and clear of any liens or mortgages except those matters which are of public record as of the Effective Date~ and (c) there is a direct ingress and egress to the Premises for Lessee's use for vehicles and pedestrians from a public right-of-way. Lessor further convents that Lessee shall have quiet enjoyment of the Premises during the tenn of this Agreement and any renewal thereof. Lessee and Lessor represents and warrants to the other that each has full right, power and authority to execute this Agreement, and will provide the other with evidence of such authority upon written demand. Lessor agrees to nOtify Lessee within thirty (30) days if at any time during the tenn of this Agreement, Lessor decides to subdivide, sell, or change the status of the Premises or the Property, or if Lessor learns of any pendiIig or threatened or contemplated actions, litigation, claims, condemnation or other proceedings which would affect the Premises or any part of the Premises, or any land use or development proposals affecting property in the viclnity of the Premises of which Lessor receives actual notice. Lessee and Lessor agree that notiling in this Agreement is intended to, or shall be construed to: (1) prevent the Lessor from any sale, lease, use, or subdivision of the Property at Lessor's sole discretion, or (2) limit Lessor's right to sell, lease, use, or subdivide the Property at Lessor's sole discretion, providing that this Agreement shall survive in the event of any such sale, lease, use, or subdivision, and that the parties to any sale, lease, use or subdivision will not interfere with Lessee's use and equipment as set forth herein.

17.

Environmental Matters. (a)

Lessee will be solely responsible for and will defend, indenmify and hold Lessor,

its agents, and employees harmless from and against any and all direct claims, costs, and

liabilities, including reasonable attorneys' fees and costs, arising out of or in connection with the cleanup or restoration of the property associated with the Lessee's use of Hazardous Materials. Lessor will be solely responsible for and will defend, indenmify, and hold Lessee, its agents, and employees harmless from and against any and all direct claims, costs, and liabilities, including reasonable attorneys' fees and costs, arising out of or in connection with the removal, cleanup, or restoration of the property with respect to Hazardous Materials from any and all sources other than those Hazardous Materials introduced to the property by Lessee.

(b)

(c) "Hazardous Materials" means asbestos or any hazardous substance, waste or materials as defined in any federal, state, or local environmental or safety law or regulation including. but not limited to, CERCLA.

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(d) The obligations of this section seventeen shall survive the expiration or other >r' . tennination of this Agreement.

18.

Successors and Assigns. (a) Upon Lessor's written consent, which shall not be unreasonably withheld. Lessee may assign this Lease, in whole or in part, including its right to renew, to any person or entity which is licensed by the Federal Communications Commission. Lessee may assign this Lease, or portion thereof, and its other rights thereunder to any person of business entity which is a parent, subsidiary or affiliate of Lessee without Lessor's consent.

(b)

19.

Sublease. "Lessee may not sublease any portion ofthe Premises without the written pennission of Lessor which may not be unreasonably withheld.

20.

Complete Agreement. It is hereby mutually agreed and understood that this Agreement . contams all agreements, promises, and understandings between Lessor and Lessee and that no other agreement, promises, or understandings shall or will be binding on either Lessor or Lessee in any dispute, controversy, or proceeding at law, and any addition, variation, or modification to this Agreement shall be void and ineffective wIess in writing and signed by the parties hereto.

21.

AnDlicable Law. This Agreement and the perfonnance thereof shall be governed, interpreted. construed, and regulated by the laws of the State of Colorado.

22.

Notices. All notices and other communications required or pennitted under this Agreement shall be in writing and shall be given by United States first class mail, postage prepaid, registered or certified. return receipt requested, or by hand delivery (including by means of a professional messenger service) addressed to the party for whom it is intended at its address set forth above. Any such notice or communication shall be deemed to be effective wh~ actually received or refused. Either party may by similar notice given change the address to which futUre notices or other communication shall be sent.

23.

Disoutes. Any claim, controversy, or dispute arising out of this Agreement shall be settled by arbitration in accordance with the applicable rules of the American Arbitration Association, except that the Federal Rules of Evidence and Civil Procedure shall apply, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in the county where the property is located, i.e., Boulder County, Colorado.

24. .

Recording. Lessor shall execute and Lessee shall be permitted to record at any time a memorandum of this Agreement that is reasonable and mutually acceptable to both parties. Lessee shall notify Lessor of such recording in writing immediately after such recording and shall provide Lessor with a copy of the memorandum indicating the date, place and location where such memorandum has been recorded. Lessee shall also be pennitted to record a notice of exercise of the Option that is reasonable and mutually acceptable to both

parties, which shall evidence the commencement of the Lease . .Lessee shall notify Lessor of such recording in writing immediately after such recording and shall provide Lessor with. a copy of such recording indicating the date, plac~ and location where it has been recorded. If the Option is not exercised or if the Lease portion of this Agreement is tenninated prior to the expiration of its term, Lessee shall record an appropriate instrument to clear this Agreement from the title to the Property within ten (10) days of: (a) expiration of the Optioo, (b) Lessee's decision not to exercise the Option, or (c) tennination of the Lease or Agreement. 25.

SillllStures. The signature for Lessor warrants that he or she is lawfully authorized to enter into this agreement on behalf of the Lessor and that no other signatures are required of the Lessor. The signature for Lessee warrants that he or she is lawfully authorized to enter into this agreement on behalf of Lessee and that no other signatures are required of the Lessee. .

1,",-' .

IN WITNESS WHEREOF, the parties hereto have set their hand and affixed their respective seals the day and the year first above

written. .

LESSOR: Valmont Butte Corporation

Date:

J- J ~-9'-

LESSEE: U S WEST Wireless Group, A Division ofU S West Conunumcations, Inc. Name:

Br./&iZ· Date:

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