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HomeMy WebLinkAbout91054400.'1.42 ANTENNA and COMMUNICATIONS ROOM SITE LEASE This Lease is made and entered into on the 1st day of July, 2005, by and between K Lazy K, Inc., a Wyoming corporation, with an address at 355 South Washington Street, PO Box 1150, Afton, Wyoming 83110 (hereinafter referred to as "Landlord"), and Gold Star Communications LLC, dba Silver Star PCS, a Wyoming limited liability company, with an address at 104101 Hwy 89, Freedom, WY 83120 (hereinafter referred to as "Tenant"). WHEREAS, Landlord owns and maintains a vacant room located in the Southwest comer of the uppermost floor of Colter's Lodge in or near the Town of Alton, State of Wyoming and geographically located at address 355 South Washington Street, (the "Premises") which is a portion of the property known as Colter's Lodge (the "Property"); and WHEREAS, Tenant desires to occupy, and Landlord is willing to provide, antenna attactunent locations upon the roof top for Tenant's cellular carrier mobile radio base station operations, including related telecommunications functions, along with space in the southwest comer of uppermost floor of the property to construct or remodel an equipment room for the purpose of housing certain communications related equipment of the Tenant; THEREFORE, in consideration of the mutual promises, conditions, and other good and valuable consideration of the parties hereto, it is covenanted and agreed as follows: 1. Grant of Lease. Landlord hereby grants to Tenant the following described lease appurtenant to the Premises, which shall be irrevocable for the duration hereof: (a) Antenna Attachment Space. The right to install, maintain, and operate certain radio transmission and receiving antennas and equipment on the rooftop of the Property, along with all wiring, cabling, and other components necessary to maintain and operate them including lines for signal carriage between the Antenna Attachment location and Tenant's designated Equipment Room. (b) Colmnunications Equipment Room. The right to occupy, maintain and operate a communications equipment room (Premises) on the Property, for the purpose of installing, protecting, and operating the Tenant's radio transmission and receiving equipment. RECEIVED 8/3/2005 at 10:37 AM RECEIVING # 910544 BOOK: 593 PAGE: 142 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY '..001.43 ( c ) Access. The right of pedestrian and vehicular ingress and egress to and from the Premises at any time over and upon the Property twenty-four (24) hours a day, seven (7) days a week, between the Premises and the public road known as Washington Street/U.S. Highway 89 over existing traveled ways where practical, and establishing a new route as necessary, including, but not limited to, the right to improve an access road, and the right to enter Premises Building at any time twenty-four (24) hours a day, seven (7) days a week. (d) Utilities. The right to place utility lines and related infrastructure over, across, or under the Property between the Premises and any suitable utility company service connection points. Landlord agrees to make such direct grants of easement as the utility companies may require. 2. Survey/Site Plan. Tenant may, at Tenant's expense, cause a survey, site plan, and/or legal description of the Premises to be prepared, to further delineate and identify the land underlying the Premises, and to attach the same as exhibits to this Lease. 3. Use of Premises. It is understood that Tenant intends to use the Premises and the licenses granted hereunder for the purpose of installing ,. maintaining, and operating a cellular common carrier mobile radio base station including system networking, station control, performance monitoring functions, an equipment building, antennas and related equipment ("Tenant's Facilities") on the Tower and the Premises for the transmission and receipt of radio-telephone and other electrical signals; such use includes the right to construct antenna attachments, or other suitable support structure (or utilize existing attachments), associated antennas, an equipment room or closet, and any other items necessary to the successful and secure operation of Tenant's Facilities. Tenant has the right to modify, supplement, replace, upgrade, and/or expand the equipment, increase the number of antennas, or relocate Tenant's Facilities within the Premises at any time during the term of this Lease. Subleasing of Tenant's facilities are allowed only with Landlords written permission. Shared use of antennas between Tenants is permissible and is encouraged. Tenant's use of the Premises shall at all times comply with and conform to all laws and regulations applicable thereto. 4. Term of Lease The Commencement Date shall be deemed to be the earlier of (i) the date that Tenant commences construction of Tenant's Facilities (defined herein) or (ii) July 1, 2005. The initial lease term will be five (5) years (the "Initial Term"), commencing upon the Commencement Date. The Initial Term will terminate on the last day of the month in which the fifth (5th) annual anniversary of the Commencement Date occurs. 09 05 4 '00144 5. Option to Renew. Tenant shall have the option to renew this Lease for up to five (5) additional terms of five (5) years each, upon a continuation of all the same provisions hereof. Each option to extend this Lease shall be automatically deemed exercised by the Tenant or its successors unless written notice of termination is sent to the Landlord at least three (3) months prior to the expiration of the then existing term of this Lease. 6. Termination. Tenant shall have the right to terminate this Lease, or any extension thereof, at any time upon giving Landlord sixty (60) days' written notice by certified mail to Landlord at the address shown in Section 27, Notices and by paying Landlord $5,000 in liquidated damages. 7. Rent. Commencing on the Cormnencement Date, Tenant shall pay rent to the Landlord in the amount of Eight Hundred Forty ($840.00) per calendar month. Rent will be prorated for any partial calendar month. Rent for the first month will be due and payable on the Commencement Date. Rent for each succeeding month will be due and payable, in advance, on the first day of each month. Tenant may choose to pay rent in a single annual instalhnent, due and payable, in advance, on the first day of the new year of the contract. Landlord shall specify the name, address, and taxpayer identification number of a sole payee (or maximum two joint payees) who shall receive rent on behalf of the Landlord. 8. Adjusted Rent. On every one (1) year anniversary of the Commencement Date of this Lease, rent shall be increased by three percent (3%) of the previous year's rent. 9. Tenant to act as Premises Manager. During the term of this contract, Tenant is obligated to act as Premises (equipment room and antenna attachment locations) Manager. Under the terms of Section Three (3) Use of Premises of this lease agreement, Tenant may elect t° sublet space to other communications related users. Tenant shall act as Administrator/Manager of other sub-lessees. Tenant shall be obligated to revenue share all amounts of space rental that are collected from sub-lessees. 10. Revenue Sharing. Any revenue that is collected from sub-lessees shall be shared at a rate of Twenty-five percent (25%) to Landlord, and Seventy-five percent (75%) to Tenant. Revenue sharing payments shall be remitted under the same terms and conditions as Section Seven (7) Rent of this lease agreement. 11. Utilities. Tenant shall solely and independently be responsible for all costs of providing utilities to the Premises, including the separate metering, billing, and payment of utility services consumed by Tenant's operations. 3 091.0544 ,.00!1_5 12. Non-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) and their frequencies on the Property to allow Tenant to evaluate the potential for interference. Tenant warrants that its use or the use of any of the subsequent sub-lessees of the Premises will not interfere with existing radio frequency users on the Property as long as the existing radio frequency user(s) operate and continue to operate within their frequencies and in accordance with all applicable laws and regulations. (b) Landlord will not grant, after the date of this Lease, a lease, license or any other right to any third party for the use of the Property, if such use may in any way adversely affect or interfere with Tenant's Facilities. Landlord will notify Tenant and receive Tenant's written approval prior to granting any third party the right to install and operate communications equipment on the Property. Nothing contained herein will restrict Tenant nor its successors and assigns from installing and modifying its communications equipment. (c) Landlord will not use, nor will Landlord permit its employees, tenant, licensees, invitees or agents to use, any portion of the Property in any way which interferes with the operations of Tenant or the rights of Tenant under this Lease. Landlord will cause such interference to cease upon not more than twenty-four (24) hours' notice from Tenant. In the event any such interference to Tenant's operations does not cease within the aforementioned cure period then the parties acknowledge that Tenant will suffer irreparable injury, and therefore, Tenant will have the right in addition to any other rights that it may have a law or in equity, for Landlord's breach of this Lease, to elect to enjoin such interference or to terminate the Lease upon notice to Landlord. 13. Compliance with FCC Radio Frequency Emissions Requirements. Tenant agrees to comply with all Federal Cormnunications Co~mnission ("FCC") rules pertaining to its operations on the Premises, including those pertaining to radio frequency exposure. Landlord shall require all other cormnunications tenants of the Property to bear the same responsibility. If a subsequent communications tenant of the Property causes the radio frequency levels at the Premises and surrounding vicinity to exceed exposure levels set by the FCC, Landlord shall require that such tenant shall take all steps necessary to meet FCC compliance levels. 14. Property Taxes. Tenant shall pay the personal property taxes levied against Tenant's Facilities and the Landlord shall be responsible for the real estate taxes levied against the Property. 15. Maintenance and Repairs. Tenant shall be responsible for all maintenance and repairs of Tenant's Facilities, and may at its own expense alter or modify Tenant's Facilities to suit its needs consistent with the intended use of the Premises. Landlord shall be responsible for all maintenance and repairs of the Property; provided, however, that 4 09/.0544 00146 Landlord shall not be responsible for the maintenance of any roadways, rights-of-way, or easements used for access to or across the Property, nor shall Landlord be responsible for the maintenance of any utility systems or services provided by third-parties and utilized by the Tenant. 16.. Mutual Indemnification. Tenant shall indemnify and hold Landlord harmless from and against any loss, damage, or injury caused by, or on behalf of, or through the fault of the Tenant or its employees or agents, or directly resulting from the installation, use, maintenance, repair or removal of Tenant's Facilities upon the Property. Landlord shall indemnify and hold Tenant harmless from and against any loss, damage, or injury caused by, or on behalf of, or through the fault of the Landlord or its employees or agents. Nothing in this Article shall require a party to indemnify the other party against such other party's own willful misconduct or negligence. Notwithstanding anything to the contrary in this Lease, each of Tenant and Landlord hereby waives any claims that they may have against the other with respect to consequential, incidental or special damages. 17. Insurance. Tenant shall continUously maintain in full force and effect a policy of cormnercial general liability insurance with limits of not less than One Million Dollars combined single limit for bodily injury or death/property damage arising out of any one occurrence covering ~l'enant's work and operations upon the Property. To the extent that it does not affect coverage under any applicable insurance policy, each party hereto hereby waives all liability of, and all right of recovery and subrogation against, each other party for any loss of or damage to property arising out of fire or other casualty. Each party agrees that neither such party nor any of its officers, agents, employees, nor its nor their insurer, will sue the other party, nor any of the officers, agents, or employees of the other party, for any such loss or damage. Each party further agrees that all of such party's insurance policies will contain waivers by the insurer of such liability, recovery, subrogation and suit, if available. 18. Monetary_ Default. Tenant shall be in default of this Lease if Tenant fails to make a payment of rent when due and such failure continues for thirty (3 0) days after Landlord notifies Tenant in writing of such failure. 19. Oppormni _ty to Cure Non-Monetary Defaults. If Landlord or Tenant fails to comply with any non-monetary provision of this Lease which the other party claims to be a default hereof, the party making such claim shall serve written notice of such default upon the defaulting party, whereupon a grace period of sixty (60) days shall commence to run during which the defaulting party shall undertake and diligently pursue a cure of the default. Such grace period shall automatically be extended for an additional sixty (60) days, provided the defaulting party makes a good faith showing that reasonable efforts 5 ;.- toward a cure are continuing. 20. Assigmnent and Binding Effect: Neither party may assign its rights or interests under this Agredment, nor delegate its duties, to any third person without the express written consent of the other party, which consent shall not unreasonably be withheld. In the event of the sale of the Property by Lessor, no such consent will be required, but Lessor will require the assumption of this Agreement by its successor. All of the terms, conditions and covenants of this Agreement shall be binding upon and shall inure to the benefit of all proper successors and assigns of the parties; provided, however that in the event of a sale or assignment of the Lessee's interest herein, the amount of rent payable under Section 7, above, shall be adjusted by mutual agreement of the parties. In the event that the parties are not able to reach an agreement regarding the adjustment of the rent, then the Lessor may, at Lessor's option, refuse to consent to the sale or assignment by the Lessee. 21. Execution of Other Instruments. Landlord agrees to execute, acknowledge, and deliver to Tenant other instruments respecting the Premises, as Tenant or Tenant's lender may reasonably request from time to time, provided that any such instruments are in furtherance of, and do not substantially expand, Tenant's rights and privileges herein established. Such instruments may include a memorandum of lease, which may be recorded in the County Recorder's Office. Landlord also agrees to reasonably cooperate with Tenant's efforts to obtain all private and public consents related to Tenant's use of the Premises, as long as Landlord is not expected to bear the financial burden of any such efforts. 22. Removal of Tenant's Facilities. Tenant's Facilities are agreed to be Tenant's personal property and shall never be considered fixtures to the real estate. Tenant shall at all times be authorized to remove Tenant's Facilities from the Premises. Within sixty (60) days after the expiration or earlier termination of this Lease, Tenant shall, if requested by Landlord and at Tenant's expense, remove any of Tenant's Facilities located above ground from the Premises. If Landlord does not notify Tenant that Tenant must remove such Tenant's Facilities within thirty days (30) after expiration or earlier termination of this Lease, then Tenant shall have the option of either removing or abandoning such Tenant's Facilities, and in any event Tenant shall be entitled to abandon all footings, foundations, and other below-ground Tenant's Facilities in place. 23. 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 Lease and bind itself hereto through the party set forth as 6 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, unencumbered by any liens, restrictions, mortgages, covenants, conditions, easements, leases, agreements of record or not of record, which would adversely affect Tenant's use and enjoyment of the Premises under this Lease; (ii) 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; and (iii) its execution and performance of this Lease will not violate any Laws, ordinances, covenants or the provisions of any mortgage, lease or other agreement binding on the Landlord. 24. Subordination. Tenant agrees to subordinate this Lease to any mortgage or trust deed which may hereafter be placed on the Premises by Landlord, provided the mortgagee or beneficiary thereunder shall ensure to Tenant the right to possession of the Premises and other rights granted to Tenant herein so long as Tenant is not in default beyond any applicable grace or cure period, such assurance to be in a form reasonably satisfactory to Landlord. If requested by Tenant, Landlord agrees to use Landlord's best efforts to assist Tenant in obtaining from any holder of a security interest in the land underlying the Premises a non-disturbance agreement in a form reasonably satisfactory to Tenant. 25. Environmental Warran _ty. (a) Landlord and Tenant agree that each will be responsible for compliance with any and all environmental and industrial hygiene and safety laws, including any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any enviromnental or industrial hygiene or safety 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 its sole cost and expense, (for payment of penalties, sanctions, forfeitures, losses, costs or damages) and for responding to any action, notice, claim, order, sumanons, citation, directive, litigation, investigation or proceeding which is related to (i) failure to comply with any environmental or industrial hygiene law, including without limitation any regulations, guidelines, standards or policies of any govermnental authorities regulating or imposing standards of liability or standards of conduct with regard to any enviromnental or industrial hygiene conditions or matters as may now or hereafter be in effect, and (ii) any environmental or industrial hygiene conditions that arise out of or are in any way related to the condition of the Property or activities conducted by the party thereon, unless the enviromnental conditions are caused by the other party. (c) The indemnifications of this Paragraph specifically include reasonable costs, expenses and fees incurred in connection with any investigation of Property conditions or any clean-up, remediation, removal or 7 0:9/.0544 restoration work required by any govermnental authority. The provisions of this Paragraph will survive the expiration or termination of this Lease. 26. Attorneys' fees. In any action on this Lease at law or in equity, the prevailing party shall be entitled to recover its reasonable costs and expenses incurred in such action and on appeal, including reasonable attorney fees. 27. Notices. All notices required or desired to be given under this Lease shall be in writing and sent by certified mail, return receipt requested, or by nationally recognized courier service to the party to be served at its address as follows: If to Landlord: K Lazy K, Inc. Attention: Richard Kunkle PO Box 1150 Afton, WY 83110 If to Tenant: Gold Star Communications LLC dba Silver Star PCS Attention: Mike Hunsaker Plant Manager 104101 Hwy 89 Freedom, WY 83120 Notices shall be deemed received when properly sent and received, refused or returned undelivered. Either party may change its address by notifying the other party of the change of address not less than ten (10) days prior to the effective date of such change. 28. Binding Effect. All of the covenants, conditions, and provisions of this Lease shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 29. Entire Agreement. This Lease constitutes the entire agreement between the parties and supersedes any prior understandings or oral or written agreements between the parties respecting the within subject matter. 30. Modifications. This Lease may not be modified, except in writing signed by the party against whom such modification is sought to be enforced. 50 31. Governing Law. This Lease will be governed by the laws of the state in which the Premises are located, without regard to conflicts of law. 32. 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 "including" will be interpreted to mean "including but not limited to"; (iii) whenever a party's consent is required under this Lease, except as otherwise stated in the Lease, such consent will not be unreasonably withheld, conditioned or delayed; (iv) exhibits are an integral part of the Lease and are incorporated by reference into this Agreement; (V) use of the terms "termination" or "expiration" are interchangeable, and (vi) reference to a default will take into consideration any applicable notice, grace and cure periods. 33. Estoppel. Either party will, at any time upon thirty (30) days prior written notice from the other, execute, acknowledge and deliver to the other a statement in writing (i) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying this Lease, 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 (ii) acknowledging that there are not, to such party's knowledge, any uncured defaults on the part of the other party hereunder, or specifying such default if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Premises to establish the truth of such assertions. Failure to deliver such a statement within such time will be conclusive upon the requesting party that (i) this Lease is in full force and effect, without modification except as may be properly represented by the requesting party, (ii) there are no uncured defaults in either party's performance, and (iii) rent has not been paid in advance beyond the regularly scheduled rental payments period set forth in the Lease. For purposes of this Section, the written notice from the requesting party must be personally delivered to or physically received by the addressee in order to be effective. 34. Special Conditions. A. The Premises will be a portion of the Property, indicated on the attached Exhibit A drawing, consisting of a space approximately in which Tenant can locate its Equipment. The Equipment Room shall be constructed/remodeled at Tenant's sole cost and expense. Tenant may construct/remodel the Equipment Room only after submitting construction plans to Landlord for Landlord's approval. B. Tenant will be entitled to install two (2) antenna attachments with up to 4 panel ante~mas on each attachment in the 1.9GHz band and 4 antenna cables from each antenna attaclnnent location on Landlord's rooftop to communications equipment room. 091.054:4 00!5.1. All antennas will be installed at prescribed heights above ground level (AGL), as agreed by the parties, and oriented in such directions as shall be in accordance with Tenant's needs. IN WITNESS WHEREOF, the parties hereto bind themselves to this Antenna Site Lease as of the day and year first above written. LANDLORD: TENANT: K Lazy K, Inc. Printed: Justin Kallal Title: /~t¢.~ ,'z~/d ,~'1 2~ Printed: Richard Kunkle Title: k/t9 Gold Star Communications LLC dba Silver Star PCS Title: lO .. 0 1.0544 0o.! 52 STATE OF WYOMING COUNTY OF LINCOLN ) )ss ) On this '~q'T~r dayof ..~ (..J~O ~.. , in the year 7_00 ~'-- , before me "'1"-©~ *'('-, ~O~ , a Notary Public, personally appeared _~,.-..r,.~ [~¢ct_/t t__ -'q~ },, ~c~/,w,~., , lq3..own or identified to me (or proved on the oath of -), to t~'tl~erj/~'~r-~ 0/~ (insert corporate title), of the corporation that executed the instrument or the person who executed the instrument on behalfsame.~Of said/~~~_corporation, and acknowledged to me th e Notary Public My Commission Expires on .~0,~ '~ 11 0~1.0544 ,.,O0153 STATE OF WYOMING COUNTY OF LINCOLN ) )ss ) Onthis Z 7J'~dayof ,.J~'-~&J~__ ,intheyear 7_.OO&"'" , before me .~,¢E..O ,~O~ , a Notary Public, personally appeared .A:t..kEA/,~. ~_~ , known or identified to me (or proved on the oath of ), to be the m.~u/~,~tc, '~~sert corporate title), of the corporation that executed the instrument or the person who executed the instrument on behalf of said corporation, and acknowledged to me that such corporation executed the same. Notary ~/$ ,20Dq I My Commission Expires on 12 m q.~m $__~ 0