HomeMy WebLinkAboutOption and Lease Agreement - OT General - 4/6/2017 I
Market:Seattle.OR—N-14
R C E j E
Cell Site Number;OLD
Cell Site Name:North Ba
Fixed Asset Number:10552677 MAR 16 2018
OPTION AND LEASE AGREEMENT 615 W. Abler Street
THIS OPTION AND LEASE AGREEMENT("Agreement"),dated as of the latter of the signature dates
below(the "Effective Date"), is entered into by Jerry W. Escalante and Sheri K. Escalante, husband and wife,
having a mailing address of PO Box 30,Allyn, WA 98524-0030("Landlord")and New Cingular Wireless PCS,
LLC, a Delaware limited liability company, having a mailing address of 575 Morosgo Drive NE, Atlanta, GA
30324("Tenant").
BACKGROUND
Landlord owns or controls that certain plot, parcel or tract of land, as described on Exhibit 1, together
with all rights and privileges arising in connection therewith, located at 480 East Victor Road, in the County of
Mason, State of Washington (collectively, the "Property"). Tenant desires to use a portion of the Property in
connection with its federally licensed communications business. landlord desires to grant to Tenant the right to
use a portion of the Property in accordance with this Agreement.
The parties agree as follows:
I. OPTION TO LEASE.
(a) Landlord grants to Tenant an option (the "Option") to lease a certain portion of the Property
containing approximately three thousand eight hundred and eighty(3,880)square feet,including an approximately
12' x 115' access driveway from East Victor Road to an approximately 50' x 50' fenced area(combined, the
"Premises") and including the air space above such ground space, as described on attached Exhibit 1 (the
"Premises"),for the access to and placement of Tenant's Communication Facility.
(b) During the Option Term,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 sole 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 offthe Property that,in the opinion of Tenant,are necessary
in Tenant's sole discretion to determine the physical condition of the Property, 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,
reasonable wear and tear and loss by casualty or other causes beyond Tenant's control excepted.
Date. The Option will be for an initial term of one(1)year commencing on the Effective Date(the"Initial Option
Term").
(d) The Option may be sold, assigned or transferred at any time by Tenant to an Affiliate(as that
term is hereinafter defined)of Tenant 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 withheld,conditioned or delayed. From and after the date the Option has been sold,assigned or
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transferred by Tenant to an Affiliate or 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 and the assignee or third party purchasing the Option shall become the
Tenant as defined in this Agreement.
(e) During the Option Tenn, Tenant may exercise the Option by notifying Landlord in writing. If
Tenant exercises the Option then Landlord leases die Premises to 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 Option Term,or during the term of this Agreement 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,") or in the event of foreclosure,
Landlord shall immediately notify Tenant in writing. Landlord agrees that during the Option Term,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 use or restriction that
would prevent or limit Tenant from using the Premises for the Permitted Use. Any and all terms and conditions
of this Agreement that by their sense and context are intended to be applicable during the Option'Perm shall be
so applicable.
2. PEIWITTED 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
communications fixtures and related equipment, cables, accessories and improvements, which may include a
suitable support structure,associated antennas, 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 1 will not be deemed to limit Tenant's
Permitted Use. If Exhibit i 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 contiguous,adjoining or Surrounding Property as described on Exhibit 1 as may
reasonably be required during construction and installation of the Communication 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 Property's main entry point
to the equipment shelter or cabinet,and to matte other improvements,alterations,upgrades or additions appropriate
for Tenant's Permitted Use, including the right to construct a fence around the Premises and undertake any other
appropriate means to secure the Premises at Tenant's expense. 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 ofthis Agreement. Tenant will be allowed to make such alterations
to the Property in order to ensure that Tenant's Communication Facility complies with all applicable federal,state
or local laws,rules or regulations. In the event Tenant desires to modify or upgrade the Communication Facility,
in a manner that requires an additional portion of the Property(the"Additional Premises")for such modification
or upgrade,Landlord agrees to lease to Tenant the Additional Premises,at a location and rate per square foot to
be negotiated at the time Tenant indicates to Landlord a desire to lease the Additional Premises. If an agreement
on the Additional Premises can be reached, 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.
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3. TERM.
(a) "I'he initial lease term will be five(5) years (the "Initial Term"), commencing on the effective
date of written notification by Tenant to Landlord of Tenant's exercise of the Option(the"Term Commencement
Date"). The Initial Term will terminate on the fifth(5t1i)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 an"Extension Term"),upon the same terms and conditions 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 then-existing Extension Term.
(c) Unless (i) Landlord or Tenant notifies the other in writing of its intention to terminate this
Agreement at least six (6) months prior to the expiration of the final Extension Term, or(ii)the Agreement is
terminated as otherwise permitted by this Agreement prior to the end of the final Extension Term,then upon the
expiration of the final Extension Term, this Agreement shall continue in force upon the same covenants, terms
and conditions for a further term of one(1)year,and for annual terms thereafter("Annual Term")until terminated
by either party by giving to the other written notice of its intention to so terminate at least six(6)months prior to
the end of any such Annual Term. Monthly rental during such Annual Terms shall be equal to the Rent paid for
the last month of the final Extension Term. if Tenant remains in possession of the Premises after the tennination
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.
(d) The Initial Term, any Extension Terms, any Annual Terms and any Holdover Tenn are
collectively referred to as the Term(the "Term"),
4. RENT.
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(c) All charges payable under this Agreement such as utilities and taxes shall be billed by Landlord
within one (1)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 payable 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
this subsection 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 and Property for 'Tenant's Permitted 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 Government 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 its choice.
(c) Tenant may also perform and obtain,at Tenant's sole cost and expense,soil borings,percolation
tests, engineering procedures, environmental investigation or other tests or reports on, over, and under the
Property, necessary to determine if 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:
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(a) by either party on thirty(30)days prior written notice, if the other party remains in default under
Section 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 permit by any agency, board, court or other governmental authority
necessaryfor the construction or operation of the Communication Facility as now or hereafter intended by'Tenant;
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or if Tenant determines, in its sole discretion that the cost of or delay in obtaining or retaining the same is
commercially unreasonable;
(c) by Tenant,upon written notice to Landlord,if Tenant determines,in its sole discretion,due to the
title report results or survey results,that the condition of the Premises is unsatisfactory for its intended uses;
(d) by Tenant upon written notice to Landlord for any reason or no reason, at any time prior to
commencement of construction by Tenant;or
(e) by Tenant upon sixty(60)days' prior written notice to Landlord for any reason or no reason, so
long as Tenant pays Landlord a termination fee equal to three(3)months'Rent,at the then-current rate,provided,
however,that no such termination fee will be payable on account of the termination of this Agreement by Tenant
under any termination provision contained in any other Section of this Agreement, including the following: 5
Approvals, 6(a) Termination, 6(b) "Termination, 6(c) Termination, 6(d) Termination, 11(d) Environmental, 18
Condemnation,or 19 Casualty.
7. INSURANCE.
(q) Tlnrino the Term Tenant will enrry at itc own cnct anal nxnenge the fnllowino in-,urance- (i)
Office (ISO) Form CG 00 01 or a substitute form providing substantially equivalent coverage. Tenant's CGL
insurance shall contain a provision including Landlord as an additional insured. Such additional insured coverage:
(i) shall be limited to bodily injury, property damage or personal and advertising injury
caused, in whole or in part,by Tenant,its employees,agents or independent contractors;
(ii) shall not extend to claims for punitive or exemplary damages arising out of the acts
or omissions of Landlord, its employees, agents or independent contractors or where such
coverage is prohibited by law or to claims arising out of the gross negligence of Landlord, its
employees,agents or independent contractors;and
(iii)shall not exceed Tenant's indemnification obligation under this Agreement, if any.
(b) Notwithstanding the foregoing,Tenant shall have the right to self-insure the coverages required
in subsection (a), in the event Tenant elects to self-insure its obligation to include Landlord as an additional
insured,the following provisions shall apply(in addition to those set forth in subsection(a)):
(i)Landlord shall promptly and no later than thirty(30)days after notice thereof provide
Tenant with written notice of any claim,demand,lawsuit,or the like for which it seeks coverage
pursuant to this Section and provide Tenant with copies of any demands,notices,summonses,or
legal papers received in connection with such claim,demand,lawsuit,or the like;
(ii)Landlord shall not settle any such claim,demand,lawsuit,or the like without the prior
written consent of Tenant;and
(iii) Landlord shall fully cooperate with Tenant in the defense of the claim, demand,
lawsuit,or the like.
8. INTERFERENCE.
(a) Landlord has acknowledged and disclosed to Tenant that amateur radio bands,public bands,and
radio-controlled drones are in use on the Property. Tenant warrants that its use of the Premises will not interfere
with those existing radio frequency uses on the Property,as long as those 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, if the exercise of such grant may in any way adversely affect or interfere with the Communication
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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, nor will Landlord permit its employees,tenants, licensees, invitees, agents or
independent contractors to,interfere in any way 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, Landlord shall cease all operations which are suspected of causing
interference(except for intermittent testing to determine the cause of such interference)until the interference has
been corrected.
(d) For the purposes of this Agreement, "interference"may include, but is not limited to,any use on
the Property or Surrounding Property that causes electronic or physical obstruction with, or degradation of, the
communications signals from the Communication Facility.
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(including 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, 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) The indemnified party: (i)shall promptly provide the indemnifying party with written notice of
any claim,demand,lawsuit,or the like for which it seeks indemnification pursuant to this Section and provide the
indemnifying party with copies of any demands,notices,summonses,or legal papers received in connection with
such claim,demand, lawsuit,or the like; (ii)shall not settle any such claim,demand, lawsuit,or the like without
the prior written consent of the indemnifying party;and(iii) shall fully cooperate with the indemnifying party in
the defense of the claim, demand, lawsuit,or the like. A delay in notice shall not relieve the indemnifying party
of its indemnity obligation, except (1) to the extent the indemnifying party can show it was prejudiced by the
delay;and(2)the indemnifying party shall not be liable for any settlement or litigation expenses incurred before
the time when notice is given.
to. 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,warrants and agrees that: (i) Landlord solely owns the Property as a legal
lot in fee simple,or controls the Property by lease or license;(ii)the Property is not and will not be 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 without hindrance or ejection by any persons lawfully claiming
under Landlord; (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 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
executed by Landlord and the holder of such security interest.
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I t. ENVIRONMENTAL.
(a) Landlord represents and warrants that,except as may be identified in Exhibit 11 attached to this
Agreement,(i)the Property,as of the date of this Agreement,is free of hazardous substances,including asbestos-
containing materials and lead paint,and(ii)the Property has never been subject to any contamination or hazardous
conditions resulting in any environmental investigation, inquiry or remediation. Landlord and Tenant agree that
each will be responsible for compliance with any and all applicable governmental laws,rules,statutes,regulations,
codes, ordinances, or principles of common law regulating or imposing standards of liability or standards of
conduct with regard to protection of the environment or worker health and safety, as may now or at any time
hereafter be in effect,to the extent such apply to that parry'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 ("Claims"),to the extent arising from that
party's breach of its obligations or representations under Section 11(a). Landlord agrees to hold harmless and
indemnify Tenant from, and to assume all duties, responsibilities and liabilities at the sole cost and expense of
Landlord for, payment of penalties, sanctions, forfeitures, losses, costs or damages, and for responding to any
Claims, to the extent arising from subsurface or other contamination of the Property with hazardous substances
prior to the effective date of this Agreement or from such contamination caused by the acts or omissions of'
Landlord during the Term. Tenant agrees to hold harmless and indemnify Landlord from,and to assume all duties,
responsibilities and liabilities at the sole cost and expense of Tenant for, payment of penalties, sanctions,
forfeitures, losses, costs or damages, and for responding to any Claims, to the extent arising from hazardous
substances brought onto the Property by Tenant.
(c) The indemnifications of this Section 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 Section 11 will survive the
expiration or termination of this Agreement.
(d) In the event Tenant becomes aware of any hazardous substances on the Property, or any
environmental,health or safety condition or matter relating to the Property, that, in Tenant's sole determination,
renders the condition of the Premises or Property unsuitable for Tenant's use,or if Tenant believes that the leasing
or continued leasing of the Premises would expose Tenant to undue risks of liability to a government agency or
other third party, 'Tenant will have the right, in addition to any other rights it may have at law or in equity, to
terminate this Agreement upon written 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 ("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. As may be described more fully in Exhibit 1, Landlord grants to Tonant 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
obtain Access to the Premises, Tenant shall incur significant damage. If Landlord fails to provide the Access
granted by this Section 12,such failure shall be a default under this Agreement.
13. REMOVAL/RESTORATION. 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, maybe removed by Tenant at
any time during or after 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 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 Tenant and may be
removed by Tenant at any time during or after the Term. Tenant will repair any damage to the Property resulting
from Tenant's removal activities. Within one hundred twenty(120)days after the termination of this Agreement,
Tenant will,to the extent reasonable,restore the Premises to its condition at the commencement of the Agreement,
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reasonable wear and tear and loss by casualty or other causes beyond Tenants control excepted. Footings,
foundations,and concrete will be removed to a depth of two(2)feet below grade. Notwithstanding the foregoing,
Tenant will not be responsible for the replacement of any trees,shrubs or other vegetation.
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14. MAINTENANCE/UTILITIES.
(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 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 will have the right, at its own cost and expense, to
submeter from Landlord. When submetering is required under this Agreement, Landlord will provide a copy of i
the utility billing to Tenant,per Section 17 below,on a monthly basis. Landlord agrees that it will not include a
markup on the utility charges. Tenant will remit payment within forty-five(45)days of receipt of the usage data
and required forms. As noted in Section 4(c)above, any utility fee recovery by Landlord is limited to a twelve
(12)month period. If Tenant submeters electricity from Landlord,Landlord agrees to give Tenant at least twenty-
four (24) hours advance notice of any planned interruptions of said electricity by Landlord. Landlord
acknowledges that Tenant provides a communication service which requires electrical power to operate and must
operate twenty-four(24)hours per day,seven(7)days per week. If the interruption is for an extended period of
time, in Tenant's reasonable determination, Landlord agrees to allow Tenant the right to bring in a temporary i
source of power for the duration of the interruption. Tenant shall use its best efforts to ensure that such power j
source will be as minimally disturbing to the Landlord and neighbors as possible. Landlord will not be responsible
for interference with, interruption of or failure,beyond the reasonable control of Landlord,of such services to be j
furnished or supplied by Landlord. j
(c) Landlord hereby grants to any company providing utility or similar services, including electric
power and telecommunications,to Tenant an easement over the Property,from an open and improved public road
to the Premises, and upon the Premises, for the purpose of constructing, operating and maintaining such lines,
wires, circuits,and conduits, associated equipment cabinets and such appurtenances thereto, as such companies
may from time to time require in order to provide such services to the Premises. Upon Tenant's or the service
company's request, Landlord will execute a separate recordable easement evidencing this grant, at no cost to
Tenant or the service company, provided that any filing or recording of such easement, if required, will be at
Tenant's expense.
15. DE'AVLT 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 written notice from Landlord of
such failure to pay; or(ii) Tenant's failure to perform any other term or condition under this Agreement within
forty-five(45)days after written notice from Landlord specifying the failure. No such failure,however,will be
deemed to exist if Tenant has commenced to cure such default within such period and provided that such efforts
are prosecuted to completion with reasonable diligence. Delay in curing a default 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)
Landlord's failure to provide Access to the Premises as required by Section 12 of this Agreement within twenty-
four (24) hours after written notice of such failure; (ii) Landlord's failure to cure an interference problem as
required by Section 8 of this Agreement within twenty-four(24)hours after written notice of such failure;or(iii) j
Landlord's failure to perform any term, condition or breach of any warranty or covenant under this Agreement
within forty-five(45)days after 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 j
beyond the reasonable control of Landlord. If Landlord remains in default beyond any applicable cure period,
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Tenant may terminate this Agreement by providing written notice to Landlord,which termination will be effective
as of the date of such casualty or other harm. 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.
Landlord agrees to permit Tenant to place temporary transmission and reception facilities on the Property, but
only until such time as Tenant is able to activate a replacement transmission facility at another location;
notwithstanding the termination of the Agreement, such temporary facilities will be governed by all of the terms
and conditions of this Agreement, including Rent. If Landlord or Tenant undertakes to rebuild or restore the
Premises and/or the Communication Facility,as applicable,Landlord agrees to permit Tenant to place temporary
transmission and reception facilities on the Property at no additional Rent until the reconstruction of the Premises
and/or the Communication Facility is completed. If Landlord determines not to rebuild or restore the Property,
Landlord will notify Tenant of such determination within thirty (30) days after the casualty or other harm. If
Landlord does not so notify Tenant, and Tenant decides not to terminate under this Section, then Landlord will
promptly rebuild or restore any portion of the Property interfering with or required for Tenant's Permitted Use of
the Premises to substantially the same condition as existed before the casualty or other harm. Landlord agrees
that the Rent shall be abated until the Property and/or the Premises are rebuilt or restored, unless'Tenant places
temporary transmission and reception facilities on the Property.
20. WAIVER OF LANDLORD'S LIENS. Landlord waives any and all lien rights it may have,statutory or
otherwise, concerning the Communication Facility or any portion thereof. The Communication Facility shall be
deemed personal property for purposes of this Agreement, regardless of whether any portion is deemed real or
personal property under applicable law; 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.
(a) Landlord shall be responsible for timely payment of all taxes and assessments levied upon the lands,
improvements and other property of Landlord, including any such taxes that may be calculated by the taxing
authority using any method, including the income method. Tenant shall be responsible for any taxes and
assessments attributable to and levied upon'Tenant's leasehold improvements on the Premises if and as set forth
in this Section 21. Nothing herein shall require Tenant to pay any inheritance,franchise,income,payroll,excise,
privilege,rent,capital stock,stamp,documentary,estate or profit tax,or any tax of similar nature,that is or may
be imposed upon Landlord.
(b)In the event Landlord receives a notice of assessment with respect to which taxes or assessments are
imposed on Tenant's leasehold improvements on the Premises,Landlord shall provide Tenant with copies of each
such notice immediately upon receipt, but in no event later than thirty(30)days after the date of such notice of
assessment. if Landlord does not provide such notice or notices to "Tenant within such time period, Landlord
shall be responsible for payment of the tax or assessment set forth in the notice,and Landlord shall not have the
right to reimbursement of such amount from Tenant. If Landlord provides a notice of assessment to Tenant within
such time period and requests reimbursement from Tenant as set forth below, then Tenant shall reimburse
Landlord for the tax or assessments identified on the notice of assessment on Tenant's leasehold improvements,
which has been paid by Landlord. If Landlord seeks reimbursement from Tenant, Landlord shall, no later than
thirty (30) days after Landlord's payment of the taxes or assessments for the assessed tax year, provide Tenant
with written notice including evidence that Landlord has timely paid same,and Landlord shall provide to Tenant
any other documentation reasonably requested by'renant to allow Tenant to evaluate the payment and to reimburse
Landlord.
(c) For any tax amount for which Tenant is responsible under this Agreement,Tenant shall have the right
to contest, in good faith, the validity or the amount thereof using such administrative, 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 with respect to the commencement and prosecution of any such
proceedings and will execute any documents required therefor. 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, to the
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1—d Lea
Version 6.7.2013
extent the amounts were originally paid by"Tenant. In the event Tenant notifies Landlord by the due date for
assessment of Tenant's intent to contest the assessment,Landlord shall not pay the assessment pending conclusion
of the contest, unless required by applicable law.
(d) Landlord shall not split or cause the tax parcel on which the Premises are located to be split,bifurcated,
separated or divided without the prior written notice to Tenant.
(e) Tenant shall have the right but not the obligation to pay any taxes due by Landlord hereunder if
Landlord fails to timely do so, in addition to any other rights or remedies of Tenant. In the event that Tenant
exercises its rights under this Section 21(e) due to such landlord default, 'Tenant shall have the right to deduct
such tax amounts paid from any monies due to Landlord from Tenant as provided in Section 15(b),provided that
Tenant may exercise such right without having provided to Landlord notice and the opportunity to cure per Section
15(b).
(f) Any tax-related notices shall be sent to Tenant in the manner set forth in Section 17 and, in addition,
of a copy of any such notices shall be sent to the following address. Promptly after the Effective Date of this
Agreement,Landlord shall provide the following address to the taxing authority for the authority's use in the event
the authority needs to communicate with Tenant. In the event that'Tenant's tax addresses changes by notice to
Landlord, Landlord shall be required to provide Tenant's new tax address to the taxing authority or authorities.
New Cingular Wireless PCS,LLC
Attn: Network Real Estate Administration--"faxes
Re:Cell Site#OL0719;Cell Site Name:North Bay(WA)
Fixed Asset#: 10552677
575 Morosgo Drive NE
Atlanta,GA 30324
(g) Notwithstanding anything to the contrary contained in this Section 21,Tenant shall have no
obligation to reimburse any tax or assessment for which the Landlord is reimbursed or rebated by a third party.
22. SALE OF PROPERTY
(a) Landlord shall not be prohibited from the selling, leasing or use of any of the Property or the
Surrounding Property except as provided below.
(b) If Landlord,at any time during the Term of this Agreement, decides to rezone or sell,subdivide
or otherwise transfer all or any part of the Premises,or all or any part of the Property or Surrounding Property,to
a purchaser other than Tenant, Landlord shall promptly notify Tenant in writing, and such rezoning, sale,
subdivision or transfer shall be subject to this Agreement and Tenant's rights hereunder. In the event of a change
in ownership,transfer or sale of the Property,within ten(10)days of such transfer,Landlord or its successor shall
send the documents listed below in this subsection(b)to Tenant. Until Tenant receives all such documents,Tenant
shall not be responsible for any failure to make payments under this Agreement and reserves the right to hold
payments due under this Agreement.
i. Old deed to Property
ii. New deed to Property
iii. Bill of Sale or Transfer
iv. Copy of current Tax Bill
V. New IRS Form W-9
vi. Completed and Signed AT&T Payment Direction Form
vii. Full contact information for new Landlord including phone number(s)
(c) 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. Landlord or Landlord's prospective purchaser
shall reimburse Tenant for any costs and expenses of such testing. If the radio frequency propagation tests
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1.d Lease
Version 6.7.2013
I
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.
(d)The provisions of this Section shall in no way limit or impair the obligations of Landlord under this
Agreement, including interference and access obligations.
23. RENTAL STREAM OFFER. If at any time after the date of this Agreement, Landlord receives a bona
fide written offer from a third patty seeking an assignment or transfer of Rent payments associated with this
Agreement("Rental Stream Offer"),Landlord shall immediately furnish Tenant with a copy of the Rental Stream
Offer. Tenant shall have the right within twenty(20)days after it receives such copy to match the Rental Stream
Offer and agree in writing to match the terms of the Rental Stream Offer. Such writing shall be in the form of a
contract substantially similar to the Rental Stream Offer. If Tenant chooses not to exercise this right or fails to
provide written notice to Landlord within the twenty(20)day period, Landlord may assign the right to receive
Rent payments pursuant to the Rental Stream Offer,subject to the terms of this Agreement. If Landlord attempts
to assign or transfer Rent payments without complying with this Section,the assignment or transfer shall be void.
Tenant shall not be responsible for any failure to make payments under this Agreement and reserves the right to
hold payments due under this Agreement until Landlord complies with this Section.
24. MISCELLANEOUS.
(a) Amendment/Waiver. This Agreement cannot be amended, modified or revised unless done in
writing and signed by Landlord and Tenant. No provision may be waived except in a writing signed by both
parties. The failure by a party to enforce any provision of this Agreement or to require performance by the other
party will not be construed to be a waiver,or in any way affect the right of either party to enforce such provision
thereafter.
(b) Memorandum/Short Form Lease. Contemporaneously with the execution of this Agreement,
the parties will execute a recordable Memorandum or Short Form of Lease substantially in the form attached as
Exhibit 24b. Either party may record this Memorandum or Short Form of Lease at any time during the Term, in
its absolute discretion. Thereafter during the Term of this Agreement,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.
(c) Limitation of Liability. Except for the indemnity obligations set forth in this Agreement, and
otherwise 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,however
caused,based on any theory of liability.
(d) Compliance with Law. Tenant agrees to comply with all federal, state and local laws, orders,
rules and regulations ("Laws") applicable to Tenant's use of the Communication Facility on the Property.
Landlord agrees to comply with all Laws relating to Landlord's ownership and use of the Property and any
improvements on the Property.
(e) 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 parties, their respective heirs, executors, administrators,
successors and assigns.
(f) 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. Exhibits are numbered to correspond to the Section wherein
they are first referenced. Except as otherwise stated in this Agreement, each party shall bear its own fees and
expenses (including the fees and expenses of its agents, brokers, representatives, attorneys, and accountants)
incurred in connection with the negotiation, drafting, execution and performance of this Agreement and the
transactions it contemplates.
(g) 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.
(h) 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
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Version 6.7.2013
I
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 Agreement,except as otherwise stated in this Agreement
or as same may be duplicative, such consent will not be unreasonably withheld, conditioned or delayed; (iv)
exhibits are an integral part of this 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: (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;(viii)the singular use of words includes the plural where appropriate and(ix)if any provision of
this Agreement is hold invalid,illegal or unenforceable,the remaining provisions of this Agreement shall remain
in full force if the overall purpose of the Agreement is not rendered impossible and the original purpose,intent or
consideration is not materially impaired.
(i) Affiliates.All references to"Tenant"shall be deemed to include any Affiliate of New Cnngular
Wireless PCS,LLC using the Premises for any Permitted Use or otherwise exercising the rights of Tenant
pursuant to this Agreement. "Affiliate"means with respect to a party to this Agreement,any person or entity
that(directly or indirectly)controls, is controlled by,or under common control with,that party. "Control"of a
person or entity means the power(directly or indirectly)to direct the management or policies of that person or
entity,whether through the ownership of voting securities,by contract,by agency or otherwise.
0) Survival. Any provisions of this Agreement relating to indemnification shall survive the
termination or expiration hereof. In addition,any terms and conditions contained in this Agreement that by their
sense and context are intended to survive the termination or expiration of this Agreement shall so survive.
(k) W-9. Asa condition precedent to payment,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,including,any change in Landlord's name or address.
(1) Execution/No 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 a binding Agreement only upon the handwritten legal execution,
acknowledgment and delivery hereof by Landlord and Tenant. This Agreement may be executed in two(2) or
more counterparts,all of which shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each of the parties.All parties need not sign the same counterpart. i
(m) Attorneys' Fees. In the event that any dispute between the parties related to this Agreement
should result in litigation,the prevailing party in such litigation shall be entitled to recover from the other party
all reasonable fees and expenses of enforcing any right of the prevailing party, including without limitation,
reasonable attorneys'fees and expenses. Prevailing party means the party determined by the court to have most
nearly prevailed even if such party did not prevail in all matters. This provision will not be construed to entitle
any party other than Landlord,Tenant and their respective Affiliates to recover their fees and expenses.
(n) WAIVER OF JURY TRIAL. EACH PARTY, TO THE EXTENT PERMITTED BY LAW,
KNOWINGLY,VOLUNTARILY AND INTENTIONALLY WANES ITS RIGHT TO A TRIAI.BY JURY IN
ANY ACTION OR PROCEEDING UNDER ANY THEORY OF LIABILITY ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THIS AGREEMENT OR THF,TRANSACTIONS IT CONTEMPLATES.
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[SIGNATURES APPEAR ON NEXT PAGE,]
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12
land Lease
Version 6.7.2013
r
IN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the last date
written below.
"LANDLORD"
Jerry W.Escalante and Sheri K.Escalante,husband and
wife
By: Q� I
Print4m"p
Escalante
And By:
Print Name: Sheri K.Escalante
Date: �� 7
:I
"TENANT"
New Cingular Wireless PCS,LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its:Mana
By: --
Print N me:
Its: 4.t�
Date: C:- VT
[ACKNOWLEDGMENTS APPEAR ON THE NEXT PAGE]
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LAW LAW I
VOMM6.7.2013
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EXHIBIT I
DESCRIPTION OF PREMISES
Page I of 2
to the Option and Lease Agreement dated EPR-; L- QO1 '.2017,by and between Jerry W.Escalante and
Sheri K. Escalante, husband and wife, as Landlord, and New Cingular Wireless PCS, LLC, a Delaware limited
liability company,as Tenant.
The Property is legally described as follows:
THE NORTHWEST QUARTER J NW 1/4) OF THE SOUTHEAST QUARTER (SE 1/4)
OF SECTION TWENTYONE 121) , TOWNSHIP TWENTYTWO ( 22) NORTH, RANGE
ONE l 11 ,'WEST W.M. EXCEPT THE 'SOUTH 330 FEET THEREOF,
EXCEPTING THEREF
ROM RIGHT—
OF—WAY WAY FOR VICTOR COUNTY ROAD NO.
684:20, AND .EXCEPTING THEREFROM ROAD RIGHTS—OF—WAY.
PARCEL NO. 12221 42 00000.
The Premises are described and/or depicted as shown on the following page: j
I
i
(Votes:
1. THIS EXHIBIT MAY BE REPLACED BY A LAND SURVEY AND/OR CONSTRUCTION DRAWINGS Or,THE PREMISES ONCE,
RECEIVED BY TENANT.
2. ANY SETBACK OF THE PREMISES FROM THE PROPERTY'S BOUNDARIES SHALL BE THE DISTANCE REQUIRED BY THE
APPLICABLE GOVERNMENTAL AUTHORITIES.
3. WIDTH OF ACCESS ROAD SHALL BE THE WIDTH REQUIRED BY THE APPLICABLE GOVERNMENTAL AUTHORITIES,INCLUDING
POLICE AND FIRE DEPARTMENTS.
4. THE TYPE,NUMBER AND MOUNTING POSITIONS AND LOCATIONS OF ANTENNAS AND TRANSMISSION LINES ARE
ILLUSTRATIVE ONLY.ACTUAL TYPES,NUMBERS AND MOUNTING POSITIONS MAY VARY FROM WHAT IS SHOWN ABOVE.
Lad/.ease
Version6.7.2013
EXMBIT 11
ENVIRONMENTAL DISCLOSURE
Landlord represents and warrants that the Property,as of the date of this Agreement,is free of hazardous
substances except as follows:
1.NONE.
LAW LAM
Vemow 6.7.2013
EXHIBIT 24b
MEMORANDUM OF LEASE
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Law Lwe
Venloo 6.7.2013
j
MEMORANDUM OF LEASE
Prenared by•
Joe Rid e
Cgnterline Solulions
6623 NE 78" C1 Fulls B-1
Portland OR 97218
Return to•
New Cingular Wireless PCS,LLC
575 Morosgo Drive NE
Atlanta,GA 30324
Attn: Network Real Estate Administration
Re: Cell Site#OL0719; Cell Site Name;North Bay
Fixed Asset# 10552677
State: Washin on
County: Mason
MEMORANDUM
OF
LEASE
This Memorandum of Lease is entered into on this day of ,2017,by and between
Jerry W. Escalante and Sheri K. Escalante, husband and wife, having a mailing address of P.O. Box
30, Allyn, WA 98524 (hereinafter referred to as "Landlord") and New Cingular Wireless PCS, LLC, a
Delaware limited liability company, having a mailing address of 575 Morosgo Drive NE, Atlanta, GA
30324(hereinafter referred to as"Tenant").
1. Landlord and Tenant entered into a certain Option and Lease Agreement ("Agreement") on
the day of 2017, for the purpose of installing, operating and
maintaining a communications facility and other improvements. All of the foregoing is set
forth in the Agreement.
2. The initial lease term will he five (5) years commencing on the effective date of written
notification by Tenant to Landlord of Tenant's exercise of its option,with four(4)successive
five(5)year options to renew.
3. The portion of the land being leased to Tenant and associated easements are described in
Exhibit 1 annexed hereto.
Land UAW
Vazlw e.l.wi 3
f
4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or
construed as amending or modifying, any of the terms, conditions or provisions of the
Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between
the provisions of this Memorandum of Lease and the provisions of the Agreement, the
provisions of the Agreement shall control. The Agreement shall be binding upon and inure to
respective heirs successors and assigns, subject to the
the benefit of the parties and their spe g �
provisions of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year
first above written.
"LANDLORD"
Jerry W. Escalante and Sheri K. Escalante,
husband and wife
By: - -
Print Name: Jerry W.Escalante
And By:
Print Name: Sheri K.Escalante
Date:
"TENANT"
New Cingular Wireless PCS,LLC,
a Delaware limited liability company
By:AT&T Mobility Corporation
Its:Manager
By:
Print Name: _
Its:
Date: _
[ACKNOWLEDGMENTS APPEAR ON THE NEXT PAGE]
to d Leax
version 6.7.2013
i
TENANT ACKNOWLEDGMENT
STATE OF )
ss:
COUNTY OF )
On the day of 2017, before me personally appeared
and acknowledged under oath that he/she is the of
AT&T Mobility Corporation,the Manager of New Cingular Wireless PCS,LLC,the Tenant named in the
attached instrument,and as such was authorized to execute this instrument on behalf of the Tenant.
Notary Public:
My Commission Expires:
LANDLORD ACKNOWLEDGMENT
STATE OF )
ss:
COUNTY OF )
On the day of ,2017 before me,personally appeared Jerry W.Escalante and
Sheri K. Escalante„ who acknowledged under oath, that they are the persons named in the within
instrument, and that they executed the same in their stated capacity as the voluntary act and deed of
Landlord for the purposes therein contained.
Notary Public:
My Commission Expires:
3
Vaaon 6.7.2013
EXHIBIT l
DESCRIPTION OF PREMISES
Page 1 of 2
to the Memorandum of Lease dated _ 20T, by and between Jerry W. Escalante and
Sheri K.Escalante,husband and wife,as Landlord,and New Cingular Wireless PCS,LLC,a Delaware
limited liability company,as Tenant.
The Property is legally described as follows:
THE NORTHWEST QUARTER (NW 1/4) OF THE SOUTHEAST QUARTER (SE 1/4)
OF SECTION TWENTYONE (21) , TOWNSHIP TWENTYTWO ( 22) NORTH, RANGE
-ONE 11) WEST W.M. .EXCEPT THE SOUTH 330 FEET 'THEREOF,
EXCEPTING THEREFROM RIGHT—OF--WAY FOR VICTOR COUNTY ROAD NO.
68420, AND EXCEPTING THEREFROM ROAD RIGHTS—OF—WAY .
PARCEL NO. 12221 42 00,000 .
The Premises are described and/or depicted as follows on the next page:
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EXHIBIT 1
DESCRIPTION OF PREMISES
Page 2 of 2
IN)INGRESS I EGRESS POTENTIAL POWER SOURCE I 15KVA
FROM NE VICTOR
y PAO-AtUUNTED TRANSFORMER
P P P N
•
i'
NE VICTOR ROAD
....�- - ..i.. �)._TREES�TO BE F I /, R -F. ,1
REAtOVEO(TVP) I .y "-i � •+ { i
�(E)FORESTED� '�• :, ..`, ...�00••C.--:.,,.,,.•s.
AREA l
• +err rrrTr � i
I I
APN. 12221-t?.-Af)Op0 1' _ f• 1 -
' 1 `'� i 1 --(E)SUBJECT
AREA:i29.26 ACRES / I
1-• '' 1: .�• I PROPERTY LINE
%�.rrrrr
1
f
p Q W MONOPOLE• I
• ATBTPROJECTAREA
NOT TO SCALE see -2.0 --
i
Premises consists of approximately 50' x l 1
50' fenced area and approximately 12'x !
NORTH 115'access road, Total of approximately
3,880 sf
5
nand rehx
Venfon 6.7.T013
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W-9 FORM
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