HomeMy WebLinkAbout1.04 Lease agreementMarkel : COIUTIWYIMTISO.LD Cell Si te Number: COU4 140 CeU Site Name: Catt le Creek -A Broadhurst Fixer! Asset Number: 10148152 . OPTION AND LAND LEASE AGREEMENT THIS OPTION AND LAND
LEASE AGREEMENT ("Agreement"), dated as of the lalter of the signature dates below (the "Effective Date"), is entered into by H Lazy F Mini Storage, LLC, a Colorado limited liability
corporation, having a mailing address of 5317 County Road 154, Glenwood Springs, CO 8 160 I (hereinafter referred to as "Landlord") and New Cingular Wireless PCS, LLC, a Delaware limited
liability company, havi ng a mai ling address of 12555 Ci ngular Way, Alpharelta, GA 30004 (hereinafter referred to as "Tenant"). BACKGROUND Landlord owns or controls that certain plot,
parcel or tract of land, improved with a structure, together with all rights and privileges ar ising in connection therewith, located at 5445 County Road 154, Glenwood Springs, CO 81601,
in the County of Garfield, State of Colorado (collectively, the "Property"). Tenant desi res to use a portion of the Property in connection with its federally licensed communications
busi ness. Landlord desires to grant to Tenant the right to use a portion of the Prope rty in accordance with this Agreement. The parties agree as follows: 1. OPTION TO LEASE. (a) Landlord
grants to Tenant an option (the "Option") to lease a portion of the Propet1y consisting of: (i) approximately Two-Hundred Fifty (250) square feet of space (S torage Unit 0 -1) for the
placement of Tenant's radio cabinets, hereinafter the "Equipment Space"; (ii) approximately 90 square feet of exterior ground space for a tower plus the airspace above such spaces for
Tenant's antennas and CTower"); and (iii) those certain areas where Tenant's conduits, wires, cables, cable trays and o ther necessary connections are located between the Equipment Space
and the Tower, and between the Equipment Space and the electric power, telephone, and fuel sources for the Property (hereinafter collectively referred to as "Connections"). Landlord
agrees that Tenant shall have the right to ins ta ll Connections between Tenant's equipment in the Equipment Space and the Tower; and between Tenant's equipment in the Equipment Space
and the electric power, telephone, and fuel sources for the Property, and any other improvement s. Landlord further agrees that Tenant shall have the nonexclusive right for ingress and
egress to the Premises (as hereinafter defined), seven (7) days a week, twenty-four (24) hours a day, on foot or motor vehicle, including trucks, over such portion of the Premises as
m~y be designated by the Landlord extending from the nearest public right-of-way to th"'" emise~ , together with the right to install, replace and maintain utility wires, poles, cables,
conduits, pipes and other necessary connections over or along any right-of-way extending from the aforementioned public right-of-way to the Premises. Notwithstanding the foregoing, Tenant,
to the extent feasible, shall locate all wires, conduits and cables on ex isting poles extending from the roadway into Landlord's Property. The Equipment Space, Tower, Connections, Access,
and Right-of-Way are hereinafter coll ectively referred to as the "Premises." · t· 2008 CO Op«ion Land 9-24-08
(b) During the Option period and any extension thereof, and during the term of this Agreement, Tenant and its agents, engineers, surveyors and other representatives will have the right
to 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 or deemed necessary or appropriate at Tenant's sale discretion
for its use of the Premises and include without limitation applications for zoning variances, zoning ordinances, amendments, special use permits, and construction permits (collectively,
the "Government Approvals"), initiate the ordering and/or scheduling of necessary utilities, and otherwise to do those things on or off the Property that, in the opinion of Tenant, are
necessary in Tenant's sale discretion to determine the physical condition of the Propelty, the environmental history of the Property, Landlord's title to the Property and the feasibility
or suitability of the Property for Tenant's Permitted Use, all at Tenant'S expense. Tenant will not be liable to Landlord or any third party on account of any pre-existing defect or
condition on or with respect to the Property, whether or not such defect or condition is disclosed by Tenant's inspection. Tenant will restore the Property to its condition as it existed
at the commencement of the Option Term (as defined below), reasonable wear and tear and casualty not caused by Tenant excepted. In addition, Tenant shall indemnify, defend and hold Landlord
harmless from and against any and all injury, loss, damage or claims arising directly out of Tenant's Tests. (c) In consideration of Landlord granting Tenant the Option, Tenant agrees
to pay Landlord the sum of Two-Thousand Three-Hundred and NollOO Dollars ($2.300.00) within thirty (30) business days of the Effective Date. The Option will be for an initial term of
six (6) months commencing on the Effective Date (the ''Initial Option Term") and may be renewed by Tenant for an additional six (6) months upon written notification to Landlord and the
payment of an additional Two-Thousand ThreeHundred and No/IOO Dollars ($2,300.00 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 to Tenant's parent company or member if Tenant is a limited liability company or any affiliate or subsidiary of, or partner in,
Tenant or its parent company or member, or to any third party agreeing to be subject to the terms hereof. Otherwise, the Option may not be sold, assigned or transferred without the written
consent of Landlord, such consent not to be unreasonably with11eld, conditioned or delayed. From and after the date the Option has been sold, assigned or transferred by Tenant to a third
party agreeing to be subject to the terms hereof, Tenant shall immediately be released from any and all liability under this Agreement, including the payment of any 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 Landlord in writing. If Tenant exercises the
Option then Landlord leases the Premises to the Tenant 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 and the parties will have no further liability to each other. (f) If during the Initial Option Term or any extension thereof, or
during the term of this Agreement if the Option is exercised, Landlord decides to subdivide, sell, or change the status of the zoning of the Premises, Property or any of Landlord's contiguous,
adjoining or surrounding property (the "Surrounding Property," which includes (without limitation) the remainder of the structure) or in the event of foreclosure, Landlord shall immediately
notify Tenant in writing. Any sale of the Property shall be subject to Tenant's rights under this Agreement. Landlord agrees that during the Initial Option Term or any extension thereof,
or during the Term of this Agreement if the Option is exercised, Landlord shall not initiate or consent to any change in the zoning of the Premises, Property or Surrounding Property
or impose or consent to any other restriction that would prevent or limit Tenant from using the Premises for the uses intended by Tenant as hereinafter set forth in this Agreement. -2-2008
CO Option Land 9-24-08
2. PERMITTED USE. Tenant may use the Premises for the transmISSIOn and reception of communications signals and the installation, construction, maintenance, operation, repair, replacement
and upgrade of its communication fixtures and related equipment, cables, accessories and improvements, which may include a suitable support structure, associated antennas, I beams, equipment
shelters or cabinets and fencing and any other items necessary to the successful and secure use of the Premises (collectively, the "Communication Facility"), as well as the right to
test, survey and review title on the Property; Tenant further has the 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 cost to Tenant or Landlord (collectively,
the "Permitted Use"). Landlord and Tenant agree that any portion of the Communication Facility that may be conceptually described on Exhibit I will not be deemed to limit Tenant's Permitted
Use. If Exhibit 1 includes drawings of the initial installation of the Communication Facility, Landlord's execution of this Agreement will signify Landlord's approval of Exhibit 1. For
a period of ninety (90) days following the start of construction, Landlord grants Tenant, its subtenants, licensees and sublicensees, the right to use such portions of Landlord's Surrounding
Property, as may reasonably be required during construction and installation of the Communications Facility. Tenant has the right to install and operate transmission cables from the
equipment shelter or cabinet to the antennas, electric lines from the main feed to the equipment shelter or cabinet and communication lines from the main entry point" to the equipment
shelter or cabinet, and to make Property improvements, alterations. upgrades or additions appropriate for Tenant's use ("Tenant Changes"). Tenant Changes include the right to construct
a fence around the Premises and undertake any other appropriate means to secure the Premises at the Tenant's expense. Tenant agrees to comply with all applicable govemmental laws, rules,
statutes and regulations, relating to its use of the Communication Facility on the Property. Tenant has the right to modify, supplement, replace, upgrade, expand the equipment, increase
the number of antennas or relocate the Communication Facility within the Premises at any time during the term of this Agreement. Tenant will be allowed to make such alterations to the
Property in order to accomplish Tenant's Changes or to insure that Tenant's Communication Facility complies with aU applicable federal, state or local laws, rules or regulations. In
the event Tenant desires to modify or upgrade the Communication Facility, and Tenant requires an additional portion of the Property (the "Additional Premises") for sucb modification
or upgrade, Landlord agrees to lease to Tenant the Additional Premises, upon the same terms and conditions set forth herein, except that the Rent shall increase, in conjunction with
the lease of the Additional Premises by a reasonable amount consistent with rental rates then charged for comparable portions of real property being in the same area. Landlord agrees
to take such actions and enter into and deliver to Tenant such documents as Tenant reasonably requests in order to effect and memorialize the lease of the Additional Premises to Tenant.
3. TERM. (a) The initial lease term will be five (5) years ("Initial Term"), conunencing on the effective date of written notification by Tenant to LandlQrd of Tenant's exercise of the
Option (the "Term Commencement Date"). The Initial Term will terminate on the fifth (5"') annual anniversary of the Term Commencement Date. (b) This Agreement will automatically renew
for four (4) additional five (5) year term(s) (each five (5) year term shall be defined as the "Extension Tenn"), upon the same terms and conditions unless the Tenant notifies the Landlord
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) If, at least sixty (60) days prior to the end
of the fourth (4th) extended term, either Landlord or Tenant has not given the other written notice of its desire that the term of this Agreement -3-2008 CO Option Land 9-24-08
end at the expiration of the fourth (4th) extended term, then upon the expiration of the fourth (4th) extended term this Agreement shall continue in force upon the same covenants, terms
and conditions for a further term of one (\) year, and for annual terms thereafter until terminated by either patty by giving to the other written notice of its intention to so tenninate
at least six (6) months prior to the end of any such annual term. Monthly rental during such annual terms shall be equal to tlle rent paid for the last month of the fourth (4"') extended
term. If Tenant remains in possession of the Premises after the termination of this Agreement then Tenant will be deemed to be occupying the Premises on a month to month basis (the "Holdover
Term"), subject to the terms and conditions of this Agreement. Rent for the Holdover Term shall be One Hundred Fifty percent (150%) of the then current Rent amount. (d) The Initial Term,
the Extension Term and the Holdover Term are collectively referred to as the Term ("Term"). 4. RENT. (a) Commencing on the first day of the month following the date that Tenant conunences
construction (the "Rent Commencement Date"), Tenant will pay the Landlord a monthly rental payment of One-Thousand One-Hundred Fifty and No/lOO Dollars ($1,150.00) ("Reot"), at the address
set forth above, on or before the fifth (5") day of each calendar month in advance. In partial months occurring after the Rent Commencement Date, Rent will be prorated. The initial Rent
payment will be forwarded by Tenant to Landlord within thirty (30) days after the Rent Commencement Date. (b) In year two (2) of the Initial Term, and each year thereafter, including
throughout any Extension Terms exercised, the yearly rent will increase by three percent (3%) over the Rent paid during the previous year. (c) All charges payable under this Agreement
such as utilities and taxes shall be billed by Landlord within one (I) year from the end of the calendar year in which the charges were incurred; any charges beyond such period shall
not be billed by Landlord, and shall not be payab Ie by Tenant. The foregoing shall not apply to monthly rent which is due and payable without a requirement that it be billed by Landlord.
The provisions of the foregoing sentence shall survive the termination or expiration of this Agreement. 5. APPROVALS. (a) Landlord agrees that Tenant's ability to use the Premises is
contingent upon the suitability of the Premises for Tenant's Pennitted Use and Tenant's ability to obtain and maintain all Government Approvals. Landlord authorizes Tenant to prepare,
execute and file all required applications to obtain Government Approvals for Tenant's Permitted Use under this Agreement and agrees to reasonably assist Tenant with such applications
and with obtaining and maintaining the Goverrunent Approvals. (b) Tenant has the right to obtain a title report or commitment for a leasehold title policy from a title insurance company
of its choice and to have the Property surveyed by a surveyor of Tenant's choice. In the event Tenant determines, in its sale discretion, due to the title report results or survey results,
that the condition of the Premises is unsatisfactory, Tenant will have the right to terminate this Agreement upon notice to Landlord. (c) Tenant may also perform and obtain, at Tenant's
sole cost and expense, soil borings, percolation tests, engineering procedures, envirotunental investigation or other tests or reports on, over, and under the Property, necessary to
determine if the Tenant's use of the Premises will be compatible with Tenant's engineering specifications, system, design, operations or Government Approvals. 6. TERMINATION. This Agreement
may be terminated, without penalty or further liability, as follows: -4. 2008 CO Option Land 9-24-08
(a) by either party on thirty (30) days prior written notice, if the other party remains in default under Paragraph 15 of this Agreement after the applicable cure periods; (b) by Tenant
upon written notice to Landlord, if Tenant is unable to obtain, or maintain, any required approval(s) or the issuance of a license or pennit by any agency, board, court or other govemmental
authority necessary for the construction or operation of the Corrununication Facility as now and hereafter intended by Tenant or if Tenant determines in its sole discretion that the
cost of obtaining or retaining the same is commercially unreasonable; or (c) by Tenant upon written notice to Landlord for any reason at any time prior to commencement of construction
by Tenant; or (d) by Tenant upon sixty (60) days prior written notice to Landlord for any reason or no reason, so long as Tenant pays Lal1dlord a termination fee equal to twelve (12)
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 anyone or more
of Paragraphs 5(b), 6(a), 6(b), 6(c), 8, 11 (d), 18, 19 or 23(j) of this Agreement. 7. INSURANCE. Tenant will carry during the Term, at its own cost and expense, the following insurance:
(i) "All Risk" property insurance for its property's replacement cost. Tenant may self insure in a manner consistent with its risk management program in effect from time to time; (ii)
commercial general liability insurance with a minimum limit of liability of Two Million Five Hundred Thousand Dollars $2,500,000 combined single limit for bodily injury or death/property
damage arising out of anyone occurrence; and (iii) Workers' Compensation Insurance as required by law. The coverage afforded by Tenant's commercial general liability insurance shall
apply to Landlord as an additional insured, but only with respect to Landlord's liability arising out of its interest in the Property. 8. INTERFERENCE. (a) Where there are existing radio
frequency user(s) on the Property, the Landlord will provide Tenant with a list of all existing radio frequency user(s) on the Property to allow Tenant to evaluate the potential for
interference. Tenant warrants that its use of the Premises will not interfere with existing radio frequency user(s) on the Property so disclosed by Landlord, as long as the existing
radio frequency user(s) operate and continue to operate within their respective frequencies and in accordance with all applicable laws and regulations. (b) Landlord will not grant, after
the date of this Agreement, a lease, license or any other right to any third party for use of the Property, if such use may in any way.adversely affect or interfere with the Communication
Facility, the operations of Tenant or the rights of Tenant under this Agreement. Landlord will notify Tenant in writing prior to granting any third party the right to install and operate
communications equipment on the Property. (c) Landlord will not use, nor will Landlord permit its employees, tenants, licensees, invitees or agents to use, any portion of the Property
in any way which interferes with the Communication Facility, the operations of Tenant or the rights of Tenant under this Agreement. Landlord will cause such interference to cease within
twenty-four (24) hours after receipt of notice of interference from Tenant. In the event any such interference does not cease within the aforementioned cure period then the parties acknowledge
that Tenal1t will suffer irreparable injury, and therefore, Tenant will have the right, in addition to any other rights that it may have at law or in equity, for Landlord's breach of
this Agreement, to elect to enjoin such interference or to terminate this Agreement upon notice to Landlord. ·5· 2008 CO Option Land 9-24-08
9. INDEMNIFICATION. (a) Tenant agrees to indemnify. defend and hold Landlord harmless from and against any and all injury, loss, damage or liability (or any claims in respect of the
foregoing), costs or expenses (induding reasonable attorneys' fees and court costs) arising directly from the installation, use, maintenance, repair or removal of the Communication Facility
or Tenant's breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Landlord, its employees, agents or independent
contractors. (b) Landlord agrees to indemnify, defend and hold Tenant harmless from and 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 from the actions or failure to act of Landlord or its employees or agents, or Landlord's breach
of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Tenant, its employees, agents or independent contractors. (c)
Notwithstanding anything to the contrary in this Agreement, Tenant and Landlord each waives any claims that each may have against the other with respect to consequential, incidental
or special damages. 10. WARRANTIES. (a) Tenant and Landlord each acknowledge and represent that it is duly organized, validly existing and in good standing and has the right, power and
authority to enter into this Agreement and bind itself hereto through the party set forth as signatory for the party below. (b) Landlord represents and warrants that: (i) Landlord solely
owns the Property as a legal lot in fee simple, or controls the Property by lease or license and solely owns the structure; (ii) the Property is not encumbered 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 as Tenant is not in default then Landlord grants to Tenant sole, actual, quiet and peaceful use, enjoyment and possession of the Premises; (iv) Landlord'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 the Landlord; and
(v) if the Property is or becomes encumbered by a deed to secure a debt, mortgage or other security interest, Landlord will provide promptly to Tenant a mutually agreeable Subordination,
Non-Disturbance and Attornment Agreement. 11. ENVIRONMENTAL. (a) Landlord represents and warrants that the Property is free of hazardous substances as of the date of this Agreement,
and, to the best of Landlord's knowledge, the Property has never been subject to any contamination or hazardous conditions resulting in any envirorunental investigation, inquiry or remediation.
Landlord and Tenant agree that each will be responsible for compliance with any and all environmental and industrial hygiene laws, induding any regulations, guidelines, standards, or
policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene condition or other
matters as may now or at any time hereafter be in effect, that are now or were related to that party's activity conducted in, or on the Property. (b) Landlord and Tenant agree to hold
harmless and indemnify the other from, and to assume all duties, responsibilities, and liabilities at the sole cost and expense of the indemnifying party for, payment of penalties, sanctions,
forfeitures, losses, costs, or damages, and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is related
to (i) the indemnifying party's failure to comply with any environmental or industrial hygiene -6-2008 CO Oplion Land 9-24-08
law, including without limitation any regulations, guidelines, standards or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct
with regard to any environmental or industrial hygiene conditions or matters as may now or hereafter be in effect, or (ii) any environmental or industrial hygiene conditions that arise
out of or are in any way related to the condition of the Property and activities conducted by the party thereon, unless the environmental conditions are caused by the other party. (c)
The indemnifications of this Paragraph 11 specifically include reasonable costs, expenses and fees incurred in connection with any investigation of Property conditions or any clean-up,
remediation, removal or restoration work required by any governmental authority. The provisions of this Paragraph 11 will survive the expiration or termination of this Agreement. (d)
In the event Tenant becomes aware of any hazardous materials on the Property, or any environmental or industrial hygiene 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 government action, intervention or third-party liability, Tenant will have the right, in addition to any other rights it may have at law or in equity, to terminate
the Agreement upon notice to Landlord. 12, ACCESS, At all times throughout the Term of this Agreement, and at no additional charge to Tenant, Tenant and its employees, agents, and subcontractors,
will have twenty-four (24) hour per day, seven (7) day per week pedestrian and vehicular access to and over the Property, from an open and improved public road to the Premises, for the
installation, maintenance and operation of the Communication Facility and any utilities serving the Premises. Landlord grants to Tenant an easement for such access and Landlord agrees
to provide to Tenant such codes, keys and other instruments necessary for such access at no additional cost to Tenant. Landlord acknowledges that in the event Tenant cannot access the
Premises, Tenant shall incur significant damage. If Landlord fails to provide the access granted by this Paragraph 12, such failure shall be a default under this Lease. In connection
with such default, in addition to any other rights or remedies available to Tenant under this Lease or at law or equity, Landlord shall pay Tenant, as liquidated damages and not as a
penalty, $500.00 per day in consideration of Tenant's damages, including, but not limited to, its lost profits, until Landlord cures such default. Landlord and Tenant agree that Tenant's
damages in the event of a denial of access are difficult, if not impossible, to ascertain, and the liquidated damages set forth herein are a reasonable approximation of such damages.
Upon Tenant's request, Landlord will execute a separate recordable easement evidencing this right. In the event any public utility is unable to use the accesS or easement provided to
Tenant then the Landlord agrees to grant additional access or an easement either to Tenant or to the public utility, for the benefit of Tenant, at no cost to Tenant. 13, REMOVALIRESTORATION,
All portions of the Communication Facility brought onto the Property by Tenant will be and remain Tenant's personal property and, at Tenant's option, may be removed by Tenant at any
time during the Term. Landlord covenants and agrees that no part of the Communication Facility constructed, erected or placed on the Premises by Tenant will become, or be considered
as being affixed to or a part of, the Property, it being the specific intention of the Landlord that all improvements of every kind and nature constmcted, erected or placed by Tenant
on the Premises will be and remain the property of the Tenant and may be removed by Tenant at any time during the Term. Within one hundred twenty (120) days of the termination of this
Agreement, Tenant will remove all of Tenant's above-ground improvements and Tenant will, to the extent reasonable, restore the Premises to its condition at the commencement of the Agreement,
reasonable wear and tear and loss by casualty or other causes beyond Tenant's control excepted. Notwithstanding the foregoing, Tenant will not be responsible for the replacement of any
trees, shrubs or other vegetation, nor will Tenant be -7-2008 CO Option Land 9-24-08
required to remove from the Premises or the Property any structural steel, any foundations or underground utilities. 14, MAINTENANCEfUTlLITIES, (a) Tenant will keep and maintain the
Premises in good condition, reasonable wear and tear and damage from the elements excepted. Landlord 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. (b) Tenant will be responsible for paying on a monthly or quarterly basis all utilities charges for electricity,
telephone service or any other utility used or consumed by Tenant on the Premises. In the event Tenant cannot secure its own metered electrical supply, Tenant wiU have the right, at
its own cost and expense, to submeter from the Landlord. When submetering is required under this Agreement, Landlord will read the meter and provide Tenant with an invoice and lIsage
data on a monthly basis. Landlord agrees that it will not include a markup on the utility charges. Landlord further agrees to provide the usage data and invoice on forms provided by
Tenant and to send such forms to such address and/or agent designated by Tenant. Tenant will remit payment within thirty days of receipt of the usage data and required forms. Failure
by Landlord to perform this function will limit utility fee recovery by Landlord to a 12-month period. If Tenant submeters electricity from Landlord, Landlord agrees to give Tenant at
least 24 hours advanced notice of any planned interruptions of said electricity. Landlord acknowledges that Tenant provides a communication service which requires electrical power to
operate and must operate twenty-four (24) hour per day, seven (7) day per week. [f the interruption is for an extended period of time, in Tenant's reasonable determination, the Landlord
agrees to allow Tenant the right to bring in a temporary source of power for thc duration of the intenuption. Landlord will fully cooperate with any utility company requesting an easement
over, under and across the Property in order for the utility company to provide service to the Tenant. Landlord will not be responsible for interference with, interruption of or failure,
beyond the reasonable control of Landlord, of such services to be furnished or supplied by Landlord. 15, DEFAULT AND RIGHT TO CURE. (a) The following will be deemed a default by Tenant
and a breach of this Agreement: (i) non-payment of Rent if such Rent remains unpaid for more than thirty (30) days after receipt of written notice from Landlord of sllch failure to pay;
or (ii) Tenant's failure to perform any other term or condition under this Agreement within forty-five (45) days after receipt of written notice from Landlord specifying the failure.
No such failure, however, will be deemed to exist if Tenant has commenced [0 cure such default within such period and provided that 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 Tenant. If Tenant remains in default beyond any applicable cure period, Landlord
will have the right to exercise any and all rights and remedies available to it under law and equity. (b) The following will be deemed a default by Landlord and a breach of this Agreement:
(i) failure to provide access to the Premises or to cure an interference problem within twenty-four (24) hours after receipt of written notice of such default; or (ii) Landlord's 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 Landlord 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 Landlord. [f Landlord remains in default beyond any applicable cure period, Tenant
will have the right to exercise any and all rights available to it under law -8-2008 CO Option Land 9-24-08
and equity, including the right to cure Landlord's default and to deduct the costs of such cure from any monies due to Landlord by Tenant. 16. ASSIGNMENT/SUBLEASE. Tenant will have the
right to assign this Agreement or sublease the Premises and its rights herein, in whole or in part, without Landlord's consent. Upon notification to Landlord of such assignment, Tenant
will be relieved of all future performance, liabilities and obligations under this Agreement. 17. NOTICES. All notices, requests, demands and communications hereunder will be given by
first class certified or registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to be effective when properly sent and received,
refused or returned undelivered. Notices will be addressed to the parties as follows: If to Tenant: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Re: Cell Site
#: COU4140; Cell Site Name: Cattle Creek -A Broadhurst (CO) Fixed Asset No: 10148152 12555 Cingular Way, Suite 1300 Alpharetta, GA 30004 With a required copy of the notice sent to the
address above to AT&T Legal at: If sent via certified or registered mail: New Cingular Wireless PCS, LLC Attn: AT&T Legal Department Re: Cell Site #: COU4140; Cell Site Name: Cattle
Creek -A Broadhurst (CO) Fixed Asset No: 10148152 PO Box 97061 Redmond, WA 98073-9761 Or, if sent via nationally recognized overnight courier: New Cingular Wireless PCS, LLC Attn: AT&T
Legal Department Re: Cell Site #: COU4140; Cell Site Name: Cattle Creek -A Broadhurst (CO) Fixed Asset No: 10148152 16331 NE nnd Way Redmond, W A 98052-7827 If to Landlord: H Lazy F
Mini Storage, LLC 5317 County Road 154 Glenwood Springs, CO 81601 ·9-2008 CO Option Land 9-24·08
Either party hereto may change the place for the giving of notice to it by thirty (30) days prior written notice to the other as provided herein. In the event of a change in ownership,
transfer or sale of the Property, within ten (10) days of such transfer, Landlord will send the following documents to Tenant: a. Old deed to Property b. New deed to Property c. Bill
of Sale or Transfer d. Copy of current Tax Bill e. New W-9 f. New Payment Direction Form g. Full contact information for new Landlord including all phone numbers In the event Tenant
does not receive such documents, Tenant shall not be responsible for any failure to pay the current landlord. 18. CONDEMNATION. In the event Landlord receives notification of any condemnation
proceedings affecting the Property, Landlord will provide notice of the proceeding to Tenant within forty-eight (48) hours. If a condemning authority takes all of the Property, or a
portion sufficient, in Tenant's sole determination, to render the Premises unsuitable for Tenant, this Agreement will terminate as of the date the title vests in the condemning authority.
The parties will each be entitled to pursue their own separate awards in the condemnation proceeds, which for Tenant will include, where applicable, the value of its Communication Facility,
moving expenses, prepaid Rent, and business dislocation expenses, provided that any award to Tenant will not diminish Landlord's recovery. Tenant will be entitled to reimbursement for
any prepaid Rent on a prorata basis. 19. CASUALTY, Landlord will provide notice to Tenant of any casualty affecting the Property within forty-eight (48) hours of the casualty. If any
part of the Corrununication Facility or Property is damaged by fire or other casualty so as to render the Premises unsuitable, in Tenant's sole determination, then Tenant may terminate
this Agreement by providing written notice to the Landlord, which termination will be effective as of the date of such damage or destruction. Upon such termination, Tenant will be entitled
to collect all insurance proceeds payable to Tenant on account thereof and to be reimbursed for any prepaid Rent on a prorata basis. If notice of termination is given, or if Landlord
or Tenant undertake to rebuild the Communications Facility, Landlord aggress to use its reasonable efforts to permit Tenant to place temporary transmission and reception facilities on
the Property at no additional Rent until such time as Tenant is able to activate a replacement transmission facility at another location or the reconstruction of the Communication Facility
is completed. 20, WAIVER OF LANDLORD'S LIENS, Landlord waives any and all lien rights it may have, statutory or otherwise, concerning the Conununication Facility or any portion thereof.
The Communication Facility shall be deemed personal propelty for purposes of this Agreement, regardless of whether any portion is deemed real or personal property under applicable law,
and Landlord consents to Tenant's right to remove all or any portion of the Communication Facility from time to time in Tenant's sole discretion and without Landlord's consent. 21. TAXES.
Landlord shall be responsible for payment of all ad valorem taxes levied upon the lands, improvements and other property of Landlord. Tenant shall be responsible for all taxes levied
upon Tenant's leasehold improvements (including Tenant's equipment building and tower) on the Premises. Landlord shall provide Tenant with copies of all assessment notices on or including
the ·10· . 2008 CO Option Land 9·24-08
Premises immediately upon receipt, but in no event later than thirty (30) days after receipt by Landlord. If Landlord fails to provide such notice within such time frame, Landlord shall
be responsible for all increases in taxes for the year covered by the assessment. Tenant shall have the right to contest, in good faith, the validity or the amount of any tax or assessment
levied against the Premiscs by such appellate or other proceedings as may be appropriate in the jurisdiction, and may defer payment of such obligations, pay same under protest, or take
such other steps as Tenant may deem appropriate. This right shall include the ability to institute any legal, regulatory or informal action in the name of Landlord, Tenant, or both,
with respect to the valuation of the Premises. Landlord shall cooperate in the institution and prosecution of any such proceedings and will execute any documents required therefore.
The expense of any such proceedings shall be borne by Tenant and any refunds or rebates secured as a result of Tenant's action shall belong to Tenant. 22. SALE OF PROPERTYIRIGHT OF FIRST
REFUSAL. If Landlord, at any time during the Term of this Agreement, decides to sell, subdivide or rezone any of the Premises, aU or any part of the Property or Surrounding Property,
to a purchaser other than Tenant, Landlord shall promptly notify Tenant in writing, and such sale, subdi vision or rezoning shall be subject to this Agreement and Tenant's rights hereunder.
Landlord agrees not to sell, lease or use any areas of the Property or Surrounding Property for the installation, operation or maintenance of other wireless communications facilities
if such installation, operation or maintenance would interfere with Tenant's Permitted Use or communications equipment as determined by radio propagation tests performed by Tenant in
its sole discretion, any such testing to be at the expense of Landlord or Landlord's prospective purchaser, and not Tenant. If the radio frequency propagation tests demonstrate levels
of interference unacceptable to Tenant, Landlord shall be prohibited from selling, leasing or using any areas of the Property or the Surrounding Property for purposes of any installation,
operation or maintenance of any other wireless communications facility or equipment. Landlord shall not be prohibited from the selling, leasing or use of any of the Property or the Surrounding
Property for nonwireless communication use. In the event the Property is transferred, the new landlord shall have a duty at the time of such transfer to provide Tenant with a completed
IRS Form W -9, or its equivalent, and other related paper work to effect a transfer in Rent to the new landlord. The provisions of this Paragraph 22 shall in no way limit or impair the
obligations of Landlord under Paragraph 8 above. 23. MISCELLANEOUS. (a) ArnendmentIWaiver. This Agreement cannot be amended, modified or revised unless done in writing and signed by
an authorized agent of the Landlord and an authorized agent of the Tenant. No provision may be waived except in a writing signed by both pal1ies. (b) Memorandum/Short Form Lease. Either
party will, at any time upon fifteen (15) business days prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum or Short Form of Lease.
Either party may record this Memorandum or Short Form of Lease at any time, in its absolute discretion. (c) Bind and Benefit. The terms and conditions contained in this Agreement will
run with the Property and bind and inure to the benefit of the panies, their respective heirs, executors, administrators, successors and assigns. (d) Entire Agreement. This Agreement
and the exhibits attached hereto, all being a part hereof. constitute the entire agreement of the parties hereto and will supersede all prior offers, negotiations and agreements with
respect to the subject matter of this Agreement. (e) Governing Law. This Agreement will be governed by the laws of the state in which the Premises are located, without regard to conflicts
of law. -11-2008 CO Option Land 9~24~08
(I) 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 construction of the terms and conditions hereof; (ii) use of the term "induding" will be interpreted to mean "induding but not limited to"; (iii) whenever a party's consent
is required under this Agreement. except as otherwise stated in the Agreement or as same may be duplicative. such consent will not be unreasonably withheld. conditioned or delayed; (iv)
exhibits are an integral part of the Agreement and are incorporated by reference into this Agreement; (v) use of the terms "termination" or "expiration" are interchangeable; (vi) reference
to a default will take into consideration any applicable notice. grace and cure periods: and (vii) 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. (g) Estoppel. Either party will. at any time upon twenty (20) business days prior written
notice from the other, execute, acknowledge and deliver to the other a statement in writing (i) certifying that this Agreement is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying this Agreement, as so modified, is in full force and effect) and the date to which the Rent and other charges are paid in advance,
if any, and (li) acknowledging that there are not, to such party's knowledge, any uncured defaults on the part of the other party hereunder, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by any prospective purchaser or encumbrance of the Premises. The requested party's failure to deliver such a statement within such
time will be conclusively relied upon by the requesting party that (i) this Agreement is in full force and effect. without modification except as may be properly represented by the requesting
pa11y, (ii) there are no uncured defaults in either party's performance, and (iii) no more than one month's Rent has been paid in advance. (h) W-9. Landlord agrees to provide Tenant
with a completed IRS Form W-9, or its equivalent, upon execution of this Agreement and at such other times as may be reasonably requested by Tenant. (i) No Electronic SignaturelNo Option.
The submission of this Agreement to any party for examination or consideration does not constitute an offer, reservation of or option for the Premises based on the terms set forth herein.
This Agreement will become effective as an Agreement only upon the handwritten legal execution, acknowledgment and delivery hereof by Landlord and Tenant. (j) Severability. If any term
or condition of this Agreement is found unenforceable, the remaining terms and conditions will remain binding upon the parties as though said unenforceable provision were not contained
herein. However, if the invalid. illegal or unenforceable provision materially affects this Agreement then the Agreement may be terminated by either party on ten (10) business days prior
written notice to the other party hereto. (k) Counterparts. This Agreement may be executed in two (2) or more counterparts, all of which shall be considered on and the same agreement
and shall become effecti ve when one or more counterparts have been signed by each of the parties. It being understood that all parties need not sign the same counterpart. IN WITNESS
WHEREOF, the parties have caused this Agreement to be effective as of the last date written below. ·12· 2008 CO Option Land 9-24-08
"LANDLORD" By: Title: Date: "TENANT" New Cingular Wireless PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its: Manager By: ____________________ __ Print
Name: Dennis Neal Its: Real Estate & Construction Manager Date: ________________ _ [ACKNOWLEDGMENTS APPEAR ON THE NEXT PAGE] -13-2008 CO Option Land 9-24-08
INDIVIDUAL CAPACITY STATE OF COUNTY OF LANDLORD ACKNOWLEDGMENT COLORADO) ) GARFIELD ) SS. This i strument was acknowl ~ge<;l before me on _m'--'--.lJl.a:!:Jrth~-"-_':f-L _ . 2011, by
__ ~Lr~~AJ~~~~.~~~~e~I-~$o~AJ~ _ . DATED: ___2 s-Lf-/_7' ,-+1---=-(-,--( ___ I STATE OF COUNTY OF TENANT ACKNOWLEDGEMENT COLORADO) ) ) SS. I certify that I know or have satisfactory
evidence that Dennis Neal 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 Real Estate & Construction Manager of New Cingular Wireless PCS, LLC, to be the free and voluntary act of such party for the uses and purposes mentioned in
the instrument. DATED: ____________________ __ Notary Seal (Signature of Notary) (Legibly Print or Stamp Name of Notary) Notary Public in and for the State of Colorado My appointment
expires: _____________ __ -14-2008 co Oplion Land 9-24-08
EXHffilTl DESCRIPTION OF PREMISES Page 1 of 2 To the Lease dated _,2011, by and between H Lazy F Mini Storage, LLC, a Colorado limited liability corporation, as Landlord, and New Cingular
Wireless PCS, LLC, a Delaware limited liability company, as Tenant. Landlord owns certain property with an address of 5445 County Road 154, Glenwood Springs, CO 8160 I, Garfield County,
State of Colorado, hereinafter identified as the "Property," Tenant leases a portion of the Property identified as the "Premises," The Premises are described andlor depicted as follows:
Premises being leased is approximately Two-Hundred Fifty (250) square feet of space (Storage Unit 0-1) for the placement of Tenant's radio cabinets plus approximately 90 square feet
of exterior grollnd space of the following Property: Property Legal Description: Section: 1 Township: 7 Range: 89 A TR IN LOTS 20 & 21 AKA PARCEL 2 AMENDED STOWE EXEMPTION PLAT Parcel
#: 239501400114 Address: 5445 County Road 154, Glenwood Springs, CO 81601, Garfield County, State of Colorado -I-2008 CO Option Land 9-24-08
EXHIBIT I DESCRIPTION OF PREMISES Page 2 of2 To the Lease dated _,2011, by and between H Lazy F Mini Storage, LLC, a lCimolioterda dloia lb.iimlitiyte dc olmiapbailnityy, caos rTpoenraatniot.n
, as Landlord, and New Cingular Wireless PCS, LLC, a Delaware Tenant Improvements are preliminarily depicted herein: -2. \ \ I I " I \ i , , , ! , l \ , I l , I I I I I i ,I 2(){)8 CO
Optton Land 9-24-08