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HomeMy WebLinkAboutDRB080278Design Review Board ACTION FORM TOwNOF YAtL COAKIJt+IrY OEUEIO~tiIEHT Department of Community Development 75 South Frontage Road, Vail, Colorado 81657 te1:970.479.2139 Fax: 970.479.2452 web: www.vailgov.com Project Name: MIDDLE CREEK ANTENNAS DRB Number: DR6080278 Project Description: APPROVAL TO INSTALL 3 PANEL ANTENNAS AND EQUIPMENT SHELTER AT MIDDLE CREEK Participants: OWNER TOWN OF VAIL 07/10/2008 75 S FRONTAGE RD W VAIL CO 81657 APPLICANT TOWN OF VAIL 07/10/2008 75 S FRONTAGE RD W VAIL CO 81657 Project Address: 145 N FRONTAGE RD VAIL Location: Legal Description: Lot: 1 Block: Subdivision: MIDDLE CREEK Parcel Number: 2101-064-0900-1 Comments: See conditions below BOARD/STAFF ACTION Motion By: DuBois Action: APPROVED Second By: Plante Vote: 5-0-0 Date of Approval: 07/16/2008 Conditions: Cond: 8 (PLAN): No changes to these plans may be made without the written consent of Town of Vail staff and/or the appropriate review committee(s). Cond: 0 (PLAN): DRB approval does not constitute a permit for building. Please consult with Town of Vail Building personnel prior to construction activities. Cond: 201 (PLAN): DRB approval shall not become valid for 20 days following the date of approval, pursuant to the Vail Town Code, Chapter 12-3-3: APPEALS. Cond: 202 (PLAN): Approval of this project shall lapse and become void one (1) year following the date of final approval, unless a building permit is issued and construction is commenced and is diligently pursued toward completion. Cond: CON0010185 1. The Applicant shall paint the proposed antennas to match the existing Middle Creek tower structure within 5 days of antenna installation. -i TOWNOFVAII, ~~~lJ~~ Development Review Coordinator Community Development Department ~U~ ~ ~ 208 75 South Frontage Road, Vail, Colorado 81657 te1:970.479.2128 fax: 970.479.2452 web: www.vailgov.com -TOWN OF VAIL Application for Design Review Minor Exterior Alterations General Information: This application is required for all proposals involving minor changes to buildings and site improvements, such as re- roofing, painting, window additions, landscaping, fences, retaining walls, etc. Applicable Vail Town Code sections can be reviewed on-line at www.vailoov.com under Vail Information -Town Code On-line. All projects requiring design review must receive approval prior to submitting a building permit application. An application for Design Review cannot be accepted until all required information is received by the Community Development Department, as outlined in the submittal requirements. Design review approval expires one year from the date of approval, unless a building permit is issued and construction commences. Fee: $250 for Multi-Family/Commercial $20 for Single Family/Duplex Description of the Request: •,=,~r~~~~: °-~ ~1,r~t~F` iud.ti.,~ 1 ~ c~c~ o-~ '-~o amt- QtL-!il pX / .l~C'Vl fil /,~S /l~,.•~X ~ ~-o~,t,~.c~ I n //lit. ('~ ~~ Y~ (',t--,~~ ~- >`I'o-,,~ U -ffrw-C~.~Y' Location of the Proposal: Lot: ~ Block: Subdivision: ~ /L~ C~l _~C1~,P ~,h.v.o ~~- ~f ~ I Physical Address: ~ ~ I V ~ ~ri't-~ ~ °; ~ ~--o a G~ ~i~-PS-~ 0 Parcel No.: ~ ~ ~-' ~ (~ l,~ ~ ~; 9 D-'o / Name(s) of owner(s): ;~rLi Li ~~o t!',v-A~ ~. Mailing Address: ` l`~~ ~ ~ ~. , , i <.: ~ ,~ r. (Contact Eagle Co. Assessor at 970-328-8640 for parcel no.) /,' Phone: Owner(s) Signature(s): ~ ~ o r ~,~~-e~~~ .~,'~~ ~~P~ ~ Gro ti-- rr.~v~- P_ G~~, p ~v. Name of Applicant: ~y~i U~~C- CQ ~-. rv.,~,•-«-.=~ c ~c~ D~ C` ~ l~~i ; ~ ~/ ~. _, 0 ~, _, Mailing Address: `7 ~~8~ f~ r.~~ ~. ~..~-a,~ 'Pl L--Z.a~- ~l ~ ~,(_ ~.~;~-I-e '~~ ,_; ,~ .-~;~ _,__ ~<-.~_ ~`~,~~,~~ .~,~ Xl~ll! Phone: ~7~, $~-~9~l,~ E-mail Address: 61~t k- S I~a.r ~ ~w ~ /~ U iuL~ ~ ~ ~"~1 Fax: ~J For Office Use Only: .- -, ..„ Fee Paid: .~ .. ., ~_ Check No.: ~ "' By: r. ,. °~j~~OgG~-~~ Meeting Date: ~~1 ; y :'1 DRB No.: d ` ~ ~~a~ ~ Glq'- Planner: ~ ~ ~ i,~ `~~t'_~'a `~.-"``, ProjectNo.: JUN 25 1008 TOWN OF VAIL WRITTEN APPROVAL LETTER M I elna t ~. hl~, i~ cr. (`U , ~.,1.,~. be Y~O,I~ ~~ IM ~~~ CrtQ4 `~ I, {print name) }~,~ _ 1 {~ , a joint otw~ne/r of property located at (~ ~ ' Lr ` ` ~~V~i7!` (}„Q 1~-{)p•~ U u ~ r7~ ,provide this letter as written approval of the plans dated which have been submitted to the Town of Vail Community Development Department for the proposed improvements to be completed at the address noted above. I understand that the proposed improvements inolude: ~~ ~~~~~-~ ~ 1 ~ ~ ~ ~~ ~ __ -- __._ __ tsr~) tn~~~~ Add t o ally, please check the st tement below which is most applicable to you: I understand that minor modifications maybe made to the plans over the course of the review process to ensure compliance with the Town's applicable codes and regulations. ~~ C/ (/ni/i~dfierc/ Q I request that all modifications, minor or ottlerwise, which are made to the plans over the r_ourse of the review process, be brought to my attention by the applicant for additional approval before undergoing further review by the Town. //ni/ia/fierce jarnr property mivrer honer renisc~d !(t`!A'11)OG Gr F:lcdev\~OftMSIPermitslPlanning\P EClcondittQnal_use10-18-2006.doc Page 2 of 5 il4106 t` ]OINT PROPERTY OWNER j~j ~~ ~~ }~ WRITTEN APPROVAL LETTER This form is applicable to all Design Review applicants that share ownership of the subject property. For example, the subject property where construction is occurring is a duplex, condominium or multi-tenant building. This form shall be completed by the applicant's neighbor/ joint property owner. In the case of amultiple-family dwelling or multi-tenant building, the authority of the association shall complete this form and mail to: Community Development Department, 75 South Frontage Road, Vaii, CO 81657 or fax to 970.479.2452. I, (print name) ~ Ole P ~'~~`~~ r~~ N'. ~ ,c ~• W. ~, - plans dated ~ ~.. !,'~~ a joint owner, or authority of the association, of property located at provide this letter as written approval of the which have been submitted to the Town of Vail Community Development Department for the proposed improvements to be completed at the address noted above. I understand that the proposed improvements include: A.~ c ~"S~- ~ (Signature) (Date) Additionally, please check the statement below which is most applicable to you: ^ I understand that minor moditcations may be made to the plans over the course of the review process to ensure compliance with the Town's applicable codes and regulations. (Initial here) ^ I request that all modifications, minor or otherwise, which are made to the plans over the course of the review process, be brought to my attention by the applicant for additional approval before undergoing further review by the Town. -JV I I~~ A 5~~~..~e.-- _ ~l~oi~ (Initial here) Design Review Board Hearing July 16, 2008 Cricket Communications (DRB08-0278) (Communication antennas and ground equipment shelter at Middle Creek) If the DRB chooses to approve the application, Staff recommends the following conditions be adopted with approval: • The Applicant shall paint the proposed antennas to match the existing Middle Creek tower structure within 5 days of antenna installation. • The Applicant shall construct the ground equipment shelter with the same materials and design as the existing Middle Creek tower structure within 5 days of antenna installation. • Design Review Board approval of the application (DRB 08-0228) becomes effective on July 24, 2008, the same date as Ordinance No. 12, Series of 2008, an ordinance amending Sections 12-9C, General Use District and 12-16, Conditional Use Permit, Vail Town Code to allow certain conditional uses as permitted uses. 'Y~Lo~G3 May 15, 2008 ~!D Nicole Peterson €u ~ Community Development Department Town Of Vail ~~`- 75 S. Frontage Road Vail, CO 81657 MAY 19 2008 ~'®1id(~ ®~` V~~~ RE: Narrative to Cricket Communication's Co-location Application at 145 N. Frontage Road (Vail -Middle Creek) Dear Nicole Peterson, Cricket Communications is seeking the Department\Commission's approval to place antennas and base radio equipment at 145 N. Frontage Rd., as known as the Vail Middle Creek Housing. Cricket is in process for securing a lease with the Town for this location. Cricket is proposing to strategically place its equipment behind Middle Creek's West elevator tower so it is concealed behind the building. Cricket is also proposing to flush mount its antennas to the top of the elevator tower fascia and paint the antennas to match the building. Because the building color is so dark and the proposed antenna area is shaded most of the day, the antennas visibility will be very minimal. Please refer to the attached drawings and photo-simulations for visual depictions of this proposal. Please don't hesitate call if you have any questions or need additional information. Sincerely /~~ ~~ti~!~~u~ Mike Sharlow Cricket Communications Site Development Contractor PO Box 23873 Silverthorne CO 80498 970-485-2996 Mksharlow1 @gmail. com cric et~ communications July 10, 2008 Nicole Peterson Planning Department Town of Vail 75 South Frontage Road Vail, CO 81657 RE: Cricket at Middle Creek Antenna Mounting Direction Dear Nicole Peterson, The panel antennas Cricket uses to propagate its wireless phone signal require they be mounted facing the general direction of their intended users. Our goal for this site is to cover Vail Village to the South, and I-70 East and West coming into and leaving Vail. This means that an antenna would have to be pointed to the South, East and West respectively. An antenna pointing to the North from this location would loose all its signal into the side of the mountain and provide no service to its intended users in the Village or on the Highway. Sincerely, l~~j~ %~~~ 6 Michael Lamb Radio Frequency Engineer 1 Cricket Communications 12875 E. 42"d Ave. Suite 70 Denver CO 80239 720-374-1882 Cricket Communications, Inc. 5680 Greenwood Plaza Blvd., Suite 500 Greenwood Village, CO 80111 T (720) 374 1820 F (720) 374 1830 w,N~nr.cricketcommunlcations.com P ~.c. o~o3t \ LandAmeriea LTIC /Commercial Lender and Search Services 5600 Cox Road Lawyers Title Glen Allen, VA 23060 Toll-free dial: (866) 552.0129 Facsimile machine: (866) 463.1124 REPORT OF TITLE LAWYERS TITLE INSURANCE CORPORATIO For the benefit of: Cricket Communications-A/P Dept. D ~ Re: 145 N Frontage Rd -Vail, CO 81657 MAY 19 2008 LAWYERS TITLE INSURANCE CORPORATION File No. 11274680 Customer Reference No. DEn-448-B/Nail Issue Date: 04/25/2008 TOWN,O~` V~I~_~ Scope of Search: Beginning 08/07/1970 and extending through 04/l 7/2008 Vested Owner (as described in last deed of record): Town of Vail, a municipal corporation Search disclosed the following: Taxes Calendar year: Amount: Parcel ID #: Paid through: Assessment: TAX EXEMPT TAX EXEMPT 210106409001 N/A $6,770.00 (total =land and improvements, if any) Land Lease Agreement Dated: O 1/ 15/2002 By & between: The Town of Vail, Colorado and Coughlin and Company, Inc. Recorded on: O 1 / 18/2002 Recorded in: Instrument No. 783202 Master Deed Restriction Agreement (The Occupancy of Units at Middle Creek Village) Dated: O 1 / 15/2002 Recorded on: 01/18/2002 Recorded in: Instrument No. 783204 Page 1 of 3 It is extremely difficult, if not impossible, to determine the extent of damage which could arise from errors or omissions in the information set forth in this Report of Title. LAWYERS TITLE INSURANCE CORPORATION would not issue this document, but for your agreement, as part of the consideration given for this document, that with the exception of intentional acts or negligence resulting in errors and omissions which shall not be subject to this limitation, LAWYERS TITLE INSURANCE CORPORATION'S liability is limited to $2,500.00, and that any such liability is predicated upon the payment of LAWYERS TITLE INSURANCE CORPORATION'S invoice for this Report of Title, and that is limited in your favor. No third party is permitted to rely upon the information set forth in this Report of Title, and no liability to any third party is undertaken by LAWYERS TITLE INSURANCE CORPORATION. This Report of Titte is limited in scope and is not a title opinion, preliminary title report, or commitment to issue title insurance. No title insurance is undertaken. LAWYE/RS TITLE INSURANCE CORPORATION By: v Authorized Signatory 4. Deed of Trust, Security Agreement, Financing Statement and Assignment of Rents and Revenues From: Coughlin and Company, Inc., a Colorado corporation To: The Public Trustee of Eagle County, Trustee(s) In favor of: Town of Vail, a Colorado statutory municipality, by and through the Vail Housing Authority, a Colorado statutory housing authority, as Special Agent for the Town of Vail Dated: O 1 / 15/2002 Recorded on: O 1 / 18/2002 Recorded in: Instrument No. 783205 5. Plat recorded on 07/19/2003 in Instrument No. 840623. 6. Underground Right-of--Way Easement Dated: 10/22/2003 By & between: The Town of Vail, a municipal corporation and Holy Cross Energy, a Colorado corporation Recorded on: 12/05/2003 Recorded in: Instrument No. 860865 Notice of Commencement of Action/Lis Pendens: Filed against: Town of Vail, Middle Creek Village LLC, Shaw Construction Company, Shaw Construction, LLC, Riviera Electric, LLC, The Bank of Cherry Creek, a branch of Western National Bank, N.A., California Bank and Trust, American Opportunity Partnership, Inc., and Metroplex Control Systems, Inc. In favor of: Consolidated Electrical Distributors, Inc. Original $ amt.: Not Available, plus penalties, costs, and interest Docketed on: 04/14/2005, in Instrument No. 912180 NOTE: Due to similar or like names this judgment may be docketed against subject property owner or it may be docketed against a similar or like name. 8. Notice of Commencement of Action -Lis Pendens: Filed against: Town of Vail, Middle Creek Village LLC, Shaw Construction Company, Shaw Construction, LLC, Riviera Electric, LLC, The Bank of Cherry Creek, a branch of Western National Bank, N.A., California Bank and Trust, American Opportunity Partnership, Inc., and Metroplex Control Systems, Inc. (Defendant/Counterclaim- Claimant/Cross-Claimant: MCFSA, Ltd., a Texas limited partnership, d/b/a Metroplex Control Systems, Inc., Counterclaim-Defendant: Consolidated Electrical Distributors, Inc., and Cross-Claim-Defendants: Town of Vail, Middle Creek Village LLC, Shaw Construction Company, Shaw Construction, LLC, Riviera Electric, LLC, The Bank of Cherry Creek, a branch of Western National Bank, N.A., California Bank and Trust, American Opportunity Partnership, Inc., Karen Sheaffer Public Trustee of Eagle County, Colorado) In favor of: Consolidated Electrical Distributors, Inc. Original $ amt.: Not Available, plus penalties, costs, and interest Docketed on: 05/31/2005, in Instrument No. 917502 NOTE: Due to similar or like names this judgment may be docketed against subject property owner or it may be docketed against a similar or like name. Legal Description File No. 11274680 LEGAL DESCRIPTION Property located in Eagle County, CO A tract of land in the South Half, of the Southeast Quarter, Section 6, Township 5 South, Range 80 West of the 6`~' Principal Meridian, Eagle County, Colorado, more particularly described as follows: Beginning at a point that is N 00°28' 16" W a distance of 686.60 feet from the Southeast corner of Section 6, Township 5 South, Range 80 West of the 6"' Principal Meridian, being the true point of beginning; also being a point on the Northerly Right-of--Way of Interstate 70; thence N 00°28' 16" W along the East line of said Section 6 a distance of 633.40 feet; thence N 89°27'21" W a distance of 2633.76 feet to a point on the East boundary line of Vall/Potato Patch Filing; thence S 00°07' 12" E along said East boundary line a distance of 351.21 feet to a point on a curve, said curve also being on the Northerly Right-or-Way of Interstate 70; thence along said Northerly Right-of--Way on the following 8 courses: 1) a distance of 204.62 feet along the arc of a curve to the right, said curve having a central angle of 02°56' 18", a radius of 3990.0 feet, and a chord bearing N 85°31' 10" E a distance of 204.60 feet; 2) N 80°13'06" E a distance of 211.80 feet; 3) N 84°56'50" E a distance of 319.70 feet; 4) S 79°56'28" E a distance of 424.40 feet; 5) S 69°55'21" E a distance of 303.20 feet; 6) S 74°21'35" E a distance of 204.70 feet; 7) S 83°36'29" E a distance of 826.30 feet; 8) S 71°33'45" E a distance of 196.10 feet to the true point of beginning containing 25.177 acres more or less; EXCEPT that portion of land described in Warranty Deed, Reception 114010, Bk 218, Pg 419, filed of record in the office of Clerk and Recorder of Eagle County, Colorado. AND BEING the same property conveyed to Town of Vail, a municipal corporation from Vail Associates, Inc., a Colorado corporation by Quit Claim Deed dated January 23, 1976 and recorded June 14, 1976 in Deed Book 246, Page 960. Tax Parcel No. 210106409001 Market: Rocky Mountain High -Denver CO Cell Site Nwnber: DEN-44Sb Cell Sitc Name: Vail Middle Creek D SITE LEASE WITH OPTION (Tower Co-location) ~~~od~ ~ JUN 25 2008 TOWN OF VAIL THIS SITE LEASE WITH OPTION ("Agreement") is entered into this Z.3 ~ day of S~Jr~ti 200 $ ("Effective Date") by and between Middle Creek Village, LLC , a Colorado limited liability corporation, having an office at 140 East l9`I' Avenue, Denver, CO 80203 ("Landlord") and CRICKET COMMUNICATIONS, iNC., a Delaware corporation, having an office at 10307 Paciftc Center Court, San Diego, CA 92121 ("Tenant"). OPTION TO LEASE. (a) In consideration of the payment of one thousand two hundred and No/100 Dollars ($1,200.00) ("Option Fee") by Tenant to Landlord, Landlord hereby grants to Tenant an option to lease the use of a portion of the real property located at 145 North Frontage Road West, Vail, CO 81657, as more completely described in the attached Exhibit A ("Property"), upon which Landlord has installed a tower ("Tower"), on the terms and conditions set forth herein ("Option"). The Option shall be for an initial term of twelve (12) months, commencing on the Effective Date ("Option Period"). The Option Period may be extended by Tenant for an additional twelve (12) months upon written notice to Landlord and payment of the sure of one thousand two hundred and No/100 Dollars ($1,200.00) ("Additional Option Fee") at any time prior to the end of the Option Period. (b) During the Option Period and any extension thereof, and during the term of this Agreement, Landlord agrees to cooperate with Tenant in obtaining, at Tenant's expense, all licenses and permits or authorizations required for Tenant's use of the Premises from all applicable government and/or regulatory entities (including, without limitation, zoning and land use authorities, and the Federal Communication Commission ("FCC")) ("Governmental Approvals"), including appointing Tenant as agent for all land use and zoning permit applications, and Landlord agrees to cooperate with and to allow Tenant, at no cost to Landlord, to obtain a title report, zoning approvals and variances, and land-use permits, and Landlord expressly grants to Tenant a right of access to the Property to perform surveys, soils tests, and other engineering procedures or environmental investigations on the Property, necessary to determine that Tenant's use of the Premises will be compatible with Tenant's engineering specifications, system design, operations and Governmental Approvals. During the Option Period and any extension thereof, Tenant may exercise the Option by conu~~encing installation of the Communications Facility. (c) If Tenant exercises the Option, then, subject to the following terms and conditions, Landlord hereby leases to Tenant the use of that portion of the Property comprising approximately six hundred square feet of ground space and certain space on the Tower sufficient for placement of Tenant's Communications Facility (as defined below), together with all necessary space and easements for access and utilities, as generally described and depicted in the attached Exhibit B (collectively, "Premises"). TERM. (a) The initial term of the Agreement shat) be five (S) years commencing on the date of the exercise of the Option ("Commencement Date"), and terminating at midnight on the last day of the initial term ("Initial Term"). (b) This Agreement shall automatically renew for five (5) additional five (5) year terms ("Renewal Term") on the same terms and conditions as set forth herein unless Tenant notifies Landlord, in writing, of Tenant's intention not to renew this Agreement, at least sixty (60) days prior to the expiration of the Initial Term or any applicable Renewal Term. If Tenant remains in possession of the Premises at the expiration of this Agreement or any Renewal Term without a written agreement executed by Landlord and Tenant, such tenancy shall be deemed amonth-to-month tenancy under the same terms and conditions of this Agreement. 3. PERMITTED USE. Tenant may use the Premises for the transmission and reception of radio communication signals and related activities. Tenant shall have the right, at its expense, to install, erect and maintain on the Premises improvements, persona] property and facilities necessary to operate its communications system, including, without limitation, radio transmitting and receiving antennas, microwave dishes, global positioning system antennas, tower and base, equipment shelters and/or cabinets and suitable support systems, and related cables and utility lines (collectively, "Communications Facility"). The Communications Facility shall initially be configured as set forth in the attached Exhibit B. Tenant may 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 teen of this Agreement. Tenant further may add 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. Tenant shall cause all construction to occur free of mechanics liens and in compliance with all applicable laws and ordinances. Tenant, at its expense, may use any and all reasonable means of restricting access to the Communications Facility, including, without limitation, the construction of a fence. 4. RENT. (a} Commencing on the first day of the month following the date that Tenant commences construction ("Rent Commencement Date"), Tenant will pay the Landlord, or its assignee, a monthly rental payment of one thousand two hundred and No/ 100 Dollars ($1,200.00) ("Rent"), at the address set forth above, on or before the fifth (5`~') day of each calendar month in advance. In partial months occun-ing 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 one (I) of each Extension Term, the monthly Rent will increase by fifteen percent (15 %) over the Rent paid during the previous Term. INTERFERENCE. (a) Tenant shall not use the Premises in any way which interferes with the use of t11e Property by Landlord, or tenants or licensees of Landlord, with rights in the Property prior in time to Tenant's (subject to Tenant's rights under this Agreement, including without limitation, non-interference). Where there are existing radio frequency users ("Carriers"} on the Property, the Landlord will provide Tenant with a list of all existing Carriers so Tenant may evaluate potential interference. Tenant warrants (including access for the purposes described in Section 1) to the Premises adequate to install and maintain utilities, which include, but are not limited to, the installation of power and telephone service cable, and to service the Premises and the Communications Facility at all times during the Initial Term of this Agreement or any Renewal Term (collectively, "Easement"). The Easement provided hereunder shall have the same term as this Agreement. (e) Tenant and its employees, agents, and subcontractors shall have 24-hours-a-day, 7-days-a-week pedestrian and vehicular access to the Premises at all times during the Term of this Agreement 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. Upon Tenant's request, Landlord will execute a separate recordable easement evidencing this right. If 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. (f) Landlord represents and warrants that the Tower, exclusive of the Communications Facility, including the lighting system, meets and will be maintained in accordance with all applicable laws, rules and regulations, including, without ]imitation, rules and regulations of the FCC, Federal Aviation Administration, and all applicable state and local requirements, rules, regulations, and laws. Landlord shall maintain the Tower in good operating and structurally sound condition. Landlord shall bear the costs of maintaining the Tower, including without }imitation any past, present or future fines, levies or expenses for noncompliance with government regulations, with the exception of maintenance of the Communications Facility, and except for damage to the Tower caused by Tenant. 7. TERMINATION. Except as otherwise provided herein, this Agreement may be terminated, without any penalty or further liability as follows: (a) by Landlord upon thirty (30) days written notice if Tenant fails to cure a default for payment of amounts due under this Agreement within that thirty (30) day period; (b) by either party upon thirty (30) days written notice if the other party commits a non-monetary default and fails to cure or continence a cure of such default within that thirty (30)-day period and diligently pursues such cure, or such longer period as may be reasonably required to diligently complete a cure commenced within that thirty (30)-day period; or (c) by Tenant upon thirty (30) days written notice to Landlord for any reason. (d) with six (6) months rent as liquidated damages 8. TAXES. Tenant shall pay any personal property taxes assessed on, or any portion of such taxes directly attributable to, the Communications Facility. Landlord shall pay any real property taxes or other fees and assessments attributable to the Property. If Landlord fails to pay any such real property taxes or other fees and assessments, Tenant shall have the right, but not the obligation, to pay such owed amounts and deduct them from Rent amounts due under this Agreement. 9. INSURANCE. Tenant shall provide Commercial General Liability Insurance in an aggregate amount of One Million and No/100 Dollars ($1,000,000.00). Tenant may satisfy this requirement by obtaining the appropriate endorsement to any master policy of liability insurance Tenant 4 may maintain. 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. Tenant shall have the right to self-insure with respect to any of the above insurance requirements. 10. INDEMNIFICATION. (a) Tenant hereby agrees to indemnify, defend and hold Landlord and its agents, contractors, employees, officers, and directors, harmless from and against any and all claims, damages, losses and expenses, including but not limited to attorneys' fees and disbursements, directly arising out of any claim, action or other proceeding (including without limitation any proceeding by any of Tenant's employees, agents or contractors) that is based upon (a) Tenant's breach of this Agreement, (b) the conduct or actions of Tenant within or outside the scope of this Agreement, or (c) any negligent act or omission or willful misconduct of Tenant. (b) Landlord hereby agrees to indemnify, defend and hold Tenant and its agents, contractors, employees, officers, and directors, harmless from and against any and all claims, damages, losses and expenses, including but not limited to attorneys' fees and disbursements, directly arising out of any claim, action or other proceeding (including without limitation any proceeding by any of Landlord's employees, agents or contractors) that is based upon (a) Landlord's breach of this Agreement, (b) the conduct or actions of Landlord within or outside the scope of this Agreement, or (c) any negligent act or omission or willful misconduct of Landlord. (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. l 1. NOTICES. A11 notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by for next-business-day delivery by a nationally recognized overnight carrier to the following addresses: If to Tenant. to: Cricket Communications, Inc 10307 Pacific Center Court San Diego, CA 92121 Attn: Daniel Rebeor With a coov to: Cricket Communications, h1c. 10307 Pacific Center Court San Diego, CA 92121 Attn: Legal Department If to Landlord, to: Michael Coughlin Middle Creek Village, LLC c/o Coughlin & Company, Inc 140 East 19`x' Avenue, suite #700 Denver, CO 80203 , ] 2. QUIET ENJOYMENT, TITLE AND AUTHORITY,. Landlord covenants and warrants to Tenant that (i) Landlord has full right, power and authority to execute this Agreement; (ii) it has good and unencumbered title to the Property free and clear of any liens or mortgages, except those disclosed to Tenant and which will not interfere with Tenant's rights to or use of the Premises; and (iii) execution and performance of this Agreement will not violate any laws, ordinances, covenants, or the provisions of any mortgage, lease, or other agreement binding on Landlord. Landlord covenants that at all times during the term of this Agreement, Tenant's quiet enjoyment of the Premises or any part thereof shall not be disturbed as long as Tenant is clot in default beyond any applicable grace or cure period. 13. ENVIRONMENTAL. that its use of the Premises will not interfere with existing Carriers so disclosed by Landlord, as long as the existing Carriers operate and continue to operate within their respective frequencies and in accordance with all applicable laws and regulations. (b) Landlord shall not use, nor shall Landlord permit its tenants, licensees, employees, invitees or agents to use, any portion of the Property in any way which interferes with the operations of Tenant. If Landlord receives any request to locate any future Carrier on the Property, Landlord shall notify Tenant so Tenant may evaluate potential interference. Landlord shall include in the lease, license or other agreement with the Carrier, and make reasonable efforts to enforce, a provision prohibiting the Carrier from interfering with Tenant's communications operations. (c) Such interference shall be deemed a material breach by the interfering party, who shall, upon written notice from the other, be responsible for terminating said interference within seventy- two (72) hours. In the event any such interference does not cease within the aforementioned cure period, the parties acknowledge that continuing interference may cause irreparable injury and, therefore, the injured party shall have the right, in addition to any other rights that it may have at law or in equity, either to bring a court action to enjoin such interference or to terminate this Agreement immediately upon written notice. 6. APPROVALS; UTILITIES; MAINTENANCE; ACCESS.. (a) Landlord shall cooperate with Tenant in obtaining, at Tenant's expense, all licenses and permits or authorizations required for Tenant's use of the Premises from all applicable government and/or regulatory entities (including, without limitation, zoning and land use authorities, and the Federal Communication Commission ("FCC") ("Governmental Approvals"), including appointing Tenant as agent for all land use and zoning permit applications, and Landlord agrees to cooperate with and to allow Tenant, at no cost to Landlord, to obtain a title report, zoning approvals and variances, and land-use permits, and Landlord expressly grants to Tenant a right of access to the Property to perforn~ surveys, soils tests, and other engineering procedures or environmental investigations on the Property, necessary to determine that Tenant's use of the Premises as defined below will be compatible with Tenant's engineering specifications, system design, operations and Governmental Approvals. (b) Tenant shall, at Tenant's expense, keep and maintain the Communications Facility now or hereafter located on the Property in commercially reasonable condition and repair during the term of this Agreement, normal wear and tear and casualty excepted. (c) Tenant shall have the right to install utilities, at Tenant's expense, and to improve the present utilities on the Property (including, but not limited to, the installation of emergency power generators) reasonably necessary to provide service to the Communications Facility. Landlord agrees to use reasonable efforts to assist Tenant to acquire such utility service. Tenant shall, wherever practicable, install separate meters for utilities used on the Property. If separate meters are not installed, Tenant shall pay the periodic charges for all utilities attributable to Tenant's use. When sub-metering is necessary and available, Landlord will read the meter on a monthly or quarterly basis and provide Tenant with the necessary usage data in a timely manner to enable Tenant to compute such utility charges. Failure by Landlord to perform this function will limit utility fee recovery by Landlord to a twelve-month period. Landlord shall diligently correct any variation, interruption or failure of utility service. (d) As partial consideration for Rent paid under this Agreement, Landlord hereby grants Tenant an easement in, under and across the Property for ingress, egress, utilities and access 3 (a) Landlord represents that it has no knowledge of any substance, chemical or waste on the Property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation (collectively, "Hazardous Substance"). Landlord and Tenant shall not introduce or use any Hazardous Substance on the Property in violation of any applicable law. Landlord shall be responsible for, and shall promptly conduct any investigation and remediation as required by any applicable environmental law, with respect to all spills or other releases of any Hazardous Substance not caused solely by Tenant, that have occurred or which may occur on the Property. (b) Each party agrees to defend, indemnify and hold harmless the other from and against any and all administrative and judicial actions and rulings, claims, causes of action, demands and liability (collectively, "Claims") including, but not limited to, damages, costs, expenses, assessments, penalties, fines, losses, judgments and reasonable attorney fees that the indemnitee may suffer or incur due to the existence or discovery of any Hazardous Substances on the Property or the migration of any Hazardous Substance to other properties or the release of any Hazardous Substance into the environment (collectively, "Actions"), that relate to or arise from the indemnitor's activities on the Property. The indemnifications in this section specifically include, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any governmental authority. This Section 13 shall survive the termination or expiration of this Agreement. (c) If Tenant becomes aware of any Hazardous Substance 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 u~zdue 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. 14. ASSIGNMENT AND SUBLEASE. (a) Tenant may assign or otherwise transfer, in whole or in part, this Agreement without the approval or consent of Landlord, but upon notice to Landlord, to Tenant's parents, partners or affiliates, or to any entity which acquires all or substantially all of Tenant's assets in the market defined by the Federal Communications Commission in which the Property is located by reason of a merger, acquisition or other business reorganization. Provided that such assignee assumes, in full, the obligations of Tenant under this Agreement, Tenant shall automatically be released from all such assigned obligations and liabilities under this Agreement. As to any other parties, this Agreement may not be assigned or transferred in whole or in part without the written consent of Landlord, which shall not be unreasonably withheld, conditioned, or delayed. (b) Additionally, Tenant may mortgage or grant a security interest in this Agreement and the Communications Facility, and may assign this Agreement and the Communications Facility to any mortgagees or holders of security interests, including their successors or assigns (collectively, "Mortgagees"), provided such Mortgagees interests in this Agreement are subject to all of the terms and provisions of this Agreement. In such event, Landlord shall execute such consent to leasehold financing as may reasonably be required by Mortgagees. (c) Landlord may assign this Agreement provided said assignee will assume, recognize and also become responsible to Tenant for the performance of all of the terms and conditions to be performed by such party tinder this Agreement. Upon such assignment, Tenant shall make Rent payments directly to the assignee. 15. SUCCESSORS AND ASSIGNS. This Agreement and the Easement granted herein shall run with the land, and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. 16. WAIVER OF LANDLORD'S LIEN. Landlord hereby waives any and all ]len rights it may Have, statutory or otherwise concerning the Communications Facility or any portion thereof which shall remain Tenant's personal property for the purposes of this Agreement, whether or not the same is deemed real or personal property under applicable laws, and Landlord gives Tenant and Mortgagees the right to remove all or any portion of the same from time to time, whether before or after a default under this Agreement, in Tenant's and/or Mortgagee's sole discretion and without Landlord's consent. 17. REMOVAL. (a) All portions of the Communications Facility brought onto the Property by Tenant will 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 constructed, 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. (b) 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. 18. MISCELLANEOUS. (a) The substantially prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorneys' fees and court costs, including appeals, if any. (b) Each party agrees to furnish to the other, within twenty (20) days after request, such truthful estoppel information about the Agreement as the other may reasonably request. (c) This Agreement constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to this Agreement must be in writing and executed by both parties. (d) Each party agrees to cooperate with the other in executing any documents (including a Memorandum of Agreement in substantially the form attached as Exhibit C) necessary to protect its rights or use of the Premises. The Memorandum of Agreement may be recorded in place of this Agreement by either party. In the event the Property is encumbered by a mortgage or deed of trust, Landlord agrees, upon request of Tenant, to obtain and furnish to Tenant anon-disturbance and attornment agreement for each such mortgage or deed of trust, in a form and content reasonably acceptable to Tenant. Tenant may obtain title insurance on its interest in the Premises. Landlord agrees to execute such documents as the Title Company may require in connection therewith. (e) This Agreement shall be construed in accordance with the laws of the state in which the Property is located. 7 (f) ]f any term of this Agreement is found to be void or invalid, such finding shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. The parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable. Any questions of particular interpretation shall not be interpreted against the draftsman, but rather in accordance with the fair meaning thereof. (g) The persons who have executed this Agreement represent and warrant that they are duly authorized to execute this Agreement in their individual or representative capacity as indicated. (h) This Agreement may be executed in any number of counterpart copies, each of which shall be deemed an original, but all of which together shall constitute a single instrument. (i) All Exhibits referred herein are incorporated herein for all purposes. Exhibit A (Legal Description of Landlord's Property) and Exhibit B (Description of Premises and Communications Facility) may be attached to this Agreement and the Memorandum of Agreement, in preliminary form. Accordingly, the parties agree that upon the preparation of final, more complete exhibits, which may have been attached hereto in preliminary form, may be replaced by Tenant with such final, more complete exhibit(s). The terms of all Exhibits are incorporated herein for all purposes. LANDLORD: Middle Creek Village, LLC Tax Identification Number : 84-] 609648 ~. ' tt ~--- .~~ Printed Name: Michael P. Coughlin ~i lts: Managing Member ~ , , +, Date: 1 , .~ ..~, J ~ tip; - -~ ~ TENANT: CRICKET COMMUNICATIONS, INC., a Delaware corporatio B 1 11 ~~'YW". Y Printed Name: Don Simmons Its: West Regional Director Date: ~ J~~' /v EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY To the Site Lease with Option dated 200_, between Middle Creek Village, LLC, a Colorado limited liability corporation, as Landlord, and Cricket Communications, Inc., a Delaware corporation, as Tenant. City: Town of Vail State: Colorado County: Eagle The Property of which the Premises are a part is legally described as follows: PROPERTY DESCRIPTION: Lat 1, Middle Creek Subdivision, Town of Vail, Eogle County, Colorado. 9 EXHIBIT B DESCRIPTION OF PREMISES AND COMMUNICATIONS FACILITY To the Site Lease with Option dated , 200_, between Middle Creek Village, LLC , a Colorado limited liability corporation, as Landlord, and Cricket Communications, hic., a Delaware corporation, as Tenant. The location of the Premises within the Property together with access, ingress, egress, easements and utilities are more particularly depicted as follows: /~ EFISrIi+t kFrxuxNt wRLL F-f.urxH; PPVEO PAHxI1nD-/ MOU.VfEp RCHr~ 0 Uu0ER510EwOFE IOwER SOFNr (PAIN t0 unrOH EMERKrR FINISH COIOR) PPOPOSCD CRKXEr ANTFNN0.R w/ MG CENtFR a )I' Nb KIYI/rH OF IRO Dorrou aF roc uNE ELEV. zs-+-: i P~OPpSEND ~PK:KET 1 uENIEP o) p EOwf AZMUrH of zaa nIwFR EOOE I~________-_ PROPOSED W000 FENOE riPO~SURE~ !' HICtN Ai if4 THE B]/EK. SID`S VANY / (]'-6" ABOVE RME MINC.) \. .. - -- _ _a~__ ___ - I ~~- _ - -- ------ ~ I - -Iii ,. ; {I--~ - __- 11 I I I ROPoSEp ~ .I!' ( KEr y II I -I nn' I I; PROPOSED CMCKlT~ I I EDUIPYENf PtwiFpRY RGCf I li N+U/FENCED EOUPM M I I `UFC\ ROOF I'fA/ FI N_ la'-D'r• SLOPE I OuPOUHD I I 1 I -- ~ '. PROPOSED UnOLT+GRWND '• /-~~ \ III _ I ~ CABLE pucrBAwK _________.J ii / \ I ' I ------------- I ' ~ ,~ ~~ ,,~ F--r- --- LI l I ss°ss ~ I 1 °°° II / PROPOSED IT- VEATIGL EAEIE TRAY (PNM t0 YA1CR EMERItNi FINISH COLORJ " .Sr 0 I+IL`u ROI EO^h vFJI wf.R LIOHi HIDDEN Lx+E INOKgiES a•VKOXIYnIE ELEYLN LOUrgN OF EKISLINO wALL CDNSIRUCrKM PROPOSED CMOKET COAx RO >ENEfRATE SOfrrt AND RUH KOHL TnOOF IN4DE BIALgNt 10 GMSTER .wrEHxv PROPOSED CRICKEr CANISrE9 r+.S w/ PAO CENTER O BO EAND AZIUViN D< I10 ~Ex~SIU+O Wn.O'NU~ / j~ 10 EXHIBIT C MEMORANDUM OF LEASE AND OPTION To the Site Lease with. Option dated , 200_, between Middle Creek Village, LLC , a Colorado limited liability corporation, as Landlord, and Cricket Communications, lnc., a Delaware corporation, as Tenant. (06/27/2008) Nicole Peterson - Re: Middle Creek Lease From: George Ruther To: Matt Mire; Nicole Peterson; Date: 06/27/2008 12:03 PM Subject: Re: Middle Creek Lease Pam Brandmeyer; Ron Braden The applicant has yet to receive pec/drb approval for the antenna installation. As of June 19th the applicant had yet to receive approval from Middle Creek. I have reviewed the development application and have asked Nicole to address numerous design related issues. Until those issues are addressed, I recommend that the Town not sign the development application. Thanks, »> Ron Braden Ob/27/2008 10:18 AM »> Apparently they have already signed a lease with Middle Creek. I had informed them our counsel would need to review the contract to ensure the Town's interests were being met. I guess they grew weary of waiting. From an a-mail that I sent to Nina, I show they started the process back in March. They have been bounced around in the system ever since, so I can't really blame them. I should have been following up to make sure everything was on track. I assume they signed the lease for $ 1200 per month. According to my latest CGA1T stats, the going rate for cell tower power and space is $ 1200 - $ 1500 per month with a 15% increase after 5 years. That can be adjusted depending on the power requirements. Do they have DRB approval yet? Ron George Ruther, AICP Director of Community Development Town of Vail 75 South Frontage Road Vail, Colorado 81658 (970) 479-2145 (o) (970) 479-2452 (f) (970) 376-2675 (c) »> Nicole Peterson 6/26/2008 4:50 PM »> Ron, Thank you for checking on this. Mike Coughlin's email: couahMPC onaol.com. Please respond to 'all' if you have another update, or email Mr. Coughlin, as I've been working with George, Matt and Pam on this as well. Thanks much! Best, np Page 1 »> Ron Braden 06/26/2008 4:29 PM »> (06/27/2008) Nicole Peterson - Re: Middle Creek Lease Do you have an a-mail address for Mike C. at Middle Creek? I just pulled the contract we have with Cellular One (now AT&T) and the rent is $ 3000 per month of which $ 1200 is going to the town and $ 1800 to the school district. Actually, it went up to $ 1400 back in 2003. Page 2 Ron Page 2 of 2 the July 14th PEC schedule. Call or email with any questions. Thank you, Nicole Nicole M. 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N b ~p w d C O O~~rnz~ 'L O ~ Z n [" ~ j m ~ f fD rnrn=DEng oz { o p' r " ~ ~ Z z H ******************************************************************************************** TOWN OF VAIL, COLORADOCopy Reprinted on 07-23-2008 at 17:00:42 07/23/2008 Statement **~x***************************************************************************************** Statement Number: 8080001177 Amount: $250.00 07/17/200801:25 PM Payment Method: Check Init: JLE Notation: 3363 ADVANCED WIRELESS Permit No: DRB080278 Type: DRB-Minor A1t,Comm/Multi Parcel No: 2101-064-0900-1 Site Address: 145 N FRONTAGE RD VAIL Location: Total Fees: $250.00 This Payment: $250.00 Total ALL Pmts: $250.00 Balance: $0.00 ******************************************************************************************** ACCOUNT ITEM LIST: Account Code Description Current Pmts DR 00100003112200 DESIGN REVIEW FEES 250.00 c rs,,,G ~. 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