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HomeMy WebLinkAboutLease Agreement between COA and Cingular WirelessIRELIESS lASSET December 8, 2005 CITY OF AUBURN 25 WEST MAIN AUBURN, WA 98001 ..00(1i G�911CL Re: Lease Agreement between City of Aubu>n ("Landlord") and Cingular Wireless ("Tenant") Site: AUBURN / WA / SS02 / 5702 S 316TH Dear Landlord: Enclosed for your records is one fully executed copy of the above -referenced Lease Agreement. This letter serves as formal notification that Cingular Wireless is hereby commencing the above - referenced Lease, effective 09/01/2005, In accordance with the terms of the Lease, rent payments in the amount of 512,000.00 will be paid annually. Your first payment may include prorated rent for a partial year, if applicable. Lastly, it is important that you retain this letter for your records. Please feel flee to contact Lease Administration directly at 888-382-9415 with any questions or concerns regarding this site. You will need to reference the site name/number shown above. Thank you for leasing with Cingular Wireless, Cingular Wireless Lease Management Prepartd by: MC 12/8/2005 Reco:dN NAM-2005 11673 SITE LEASE AGREEMENT THIS SITE LEASE AGREEMENT ("Lease") is by and between the City of Auburn, a municipal corporation under the existing laws of the State of Washington, having a mailing address of 25 West Main, Auburn, WA 98001 ("Landlord") and New Cingular Wireless PCS, LLC, a Delaware limited liability company, successor in interest to AT&T Wireless Services of Washington, LLC, an Oregon limited liability company, dba AT&T Wireless, by AT&T Wireless Services, Inc., a Delaware corporation, its Member, having a mailing address of 6100 Atlantic Boulevard, Norcross, GA 30071 ("Tenant ), 1 Lease Agreement. (a) Landlord hereby leases to Tenant a portion of the real property legally described as follows: "THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 113 TOWNSHIP 21 NORTH, RANGE 4 EAST W.M., EXCEPT THE WEST 663 FEET OF THE NORTH 663 FEET OF THE SOUTH 693 FEET THEREOF, AND EXCEPT THE SOUTH 30 FEET THEREOF CONVEYED TO THE CITY OF AUBURN FOR SOUTH 316T" STREET, BY INSTRUMENT RECORDED UNDER RECORDING NO. 8503210865 AS PROVIDED BY RESOLUTION NO. 1565 OF THE CITY OF AUBURN; SITUATE IN THE CITY OF AUBURN, COUNTY OF KING, STATE OF WASHINGTON", (collectively referred to hereinafter as the "Property). The Lease includes the right to operate a personal communications service antenna Installation on Landlord's property, on the terms and conditions set forth herein. (b) Tenant agrees to the Lease, subject to the following terms and conditions. Landlord hereby leases to Tenant the use of that portion of the Property as legally described as follows: "COMMENCING AT THE SOUTHEAST CORNER OF THE WEST 663.0 FEET OF THE NORTH 663.0 FEET OF THE SOUTH 693.0 FEET OF THE NORTHEAST ONE QUARTER OF THE SOUTHWEST ONE QUARTER OF SECTION 11, TOWNSHIP 21 NORTH, RANGE 4 E., W.M.; THENCE NORTH 00 25' 35" EAST ALONG THE EAST LINE OF SAID PARCEL 249.00 FEET; THENCE SOUTH 89 ° 34' 25" EAST 40.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 89 ° 34' 25" EAST 80.00 FEET; THENCE SOUTH 0 ° 25' 35" WEST 75.00 FEET; THENCE NORTH 89 ° 34' 25" WEST 80,00 FEET; THENCE NORTH 0 ° 25' 35" EAST 75.00 FEET TO THE TRUE POINT OF BEGINNING; SITUATED IN THE CITY OF AUBURN, RECORDS OF KING COUNTY, WASHINGTON" (collectively referred to hereinafter as the "Lease Area"). The Lease Area, located at 5702 South 316h Street Auburn Washington, comprises approximately an area not to exceed 6,000 square feet. (c) The Lease shall be nonexclusive and shall not preGUde Landlord from granting a similar lease, right, license, franchise, etc., to other carriers or other persons for telecommunications or any other purpose, so long as the subsequent agreement protects Tenant's rights granted by this Lease. ( Landlord further hereby leases to Tenant the use Of that portion of the Property as legally dascribed as follows: "BEGINNING A7 THE SOUTHEAST CORNER OF THE WEST 663.0 FEET OF THE NORTH 663.0 FEET OF THE SOUTH 693.0 FEET OF THE NORTHEAST ONE QUARTER OF THE SOUTHWEST ONE QUARTER OF SECTION 11, TOWNSHIP 21 NORTH RANGE 4 E., W.M.; THENCE NORTH 0 ° 25' 35" EAST 249.00 FEET; THENCE SOUTH 89 ° 34' 25" EAST 40.00 FEET; THENCE SOUTH 0 ° 25' 35" WEST 75.00 FEET THENCE SOUTH 89 ° 34' 25" EAST 80.00 FEET; THENCE SOUTH 0 ° 25' 35" WEST 47.00 FEET; THENCE NORTH 89 ° 34' 25" WEST 90.00 FEET; THENCE SOUTH 0 ° 26' 35" WEST 40.00 FEET; THENCE SOUTH 48 ° 001 00" EAST 80,00 FEET; THENCE SOUTH 23 ° 30' 00" EAST 33,60 FEET MORE OR LESS TO THE NORTH MARGIN OF SOUTH 316Ta STREET; THENCE SOUTH 68 ° 39' 09" WEST ALONG SAID NORTH MARGIN 103.52 TO THE POINT OF BEGINNING; SITUATED IN THE CITY OF AUBURN, RECORDS OF KING COUNTY, WASHINGTON" (collectively referred to hereinafter as the °Access and Uilllty Easement°). The Access and Utility Easement comprises approximately an area not to exceed 16,165 square feet. 2. Term. The initial term of this Lease shall be five (5) years commencing on September 1, 2005 (°Commencement Date"), and terminating at midnight on the last day of the initial term ('Initial Term'). 3. Antenna Facilities. Tenant may use the Lease Area for the transmission and reception of radio communication signals and for the construction, Installation, operation, maintenance, repair, removal or replacement of related facilities necessary for the operation of a telecommunications facility as well as for access and utilities. These facilities include an antenna tower (not to exceed 150 feet in height) and base, together with a supporting outbuilding for housing of electronic equipment related to the antennas and wireless communications system and an emergency generator (collectively, the "Antenna Facilities"), the maintenance of which shall not violate ACC 8.28,010 regarding noise. 4. Rent. Tenant shall pay Landlord, as rent, Twelve Thousand and no/100 dollars ($12,000.00) per year ("Rent"). Rent shall be payable within twenty (20) days following the Commencement Date and thereafter the Rent will be payable yearly, no later than the anniversary of the Commencement Date to City of Auburn Water Utility Fund Account Number 430,369,900 at Landlord's address specified in Section 12 below. The Rent shall increase annually over the Rent payable the preceding year in proportion to the increase of the "All Items" category of the Consumer Price Index for Urban Wage Earners and Clerical Workers published by the Bureau of Labor Statistics of the U.S. Department of Labor for Seattle -Everett Metropolitan Area (the "Index°). The first adjustment shall be based on the amount, If any, by which the Index for the 12th month of the Lease term has increased over the Index for the month preceding the commencement of the lease term. Subsequent adjustments will be based on the amount, if any, by which the Index for each subsequent le month of the Lease term has increased over the Index for the 12" month of the preceding 12-month period. It shall be the responsibility of the Landlord to track the CPI and notify the Tenant of increases or reductions in the Rent. Landlord shall notify Tenant within 90 days of the commencement of the Renewal Term as to the revised rate at which the Rent shall be increased annually thereafter. Landlord will invoice Tenant for back Rent due or refund over payment as necessary to correct the payment received for the first year of the Renewal Term. If at any time the GPI ceases to incorporate a significant number of Items, if a substantial change is made in the method of establishing the CPI, or if issuance of the CPI shall be discontinued, then the Landlord and Tenant shall mutually agree upon another standard recognized cost of living index Issued by the United States Government, provided that if the parties cannot reach agreement on such other standard cost of living index, then the Landlord shall select the index closest to the CPI. In either case, the substitute index chosen shall result in increases in the Rent similar to those that had been, or would have been, generated by the CPI. If this Lease is terminated at a time other than on the anniversary of the Commencement Date, Rent shall be prorated as of the date of termination for any reason (other than a default by Tenant) and all prepaid Rent shall be refunded to Tenant within sixty (60) days. 5. Renewal. Tenant may extend this Lease for (5) additional, five-year terms (each a 'Renewal Term"), Each Renewal Term shall be on the same terms and conditions as set forth herein, including the Rent increase set forth in Section 4, above. This Lease shall automatically renew for each successive Renewal Term unless Tenant notifies Landlord, in writing, of Tenant's intention not to renew this Lease, at least ninety (90) days prior to the expiration of the Initial Term or any Renewal Term. Landlord may, during any Renewal Term, notify Tenant, in writing, of Landlord's intention not to renew this Lease for an additional Renewal Term, which notice shall be provided to Tenant at least one hundred and eighty (180) days prior to the expiration of the then in effect Renewal Term. Landlord may, during the final one hundred and eighty (180) days of the Initial Term or any Renewal Term, conduct a market survey to determine the fair market value of the Lease. The Rent for the next Renewal Term will be established by the results of the market survey with each subsequent years Rent governed by the terms of Section 4, however, under no circumstance will the Rent decrease as a result of the market survey below the amount of the most recently established rate in existence prior to the market survey. If Landlord and Tenant cannot reach agreement on the Rent for the next Renewal Term prior to the end of the initial or any renewal term the Lease will not renew, if Tenant shall remain in possession of the Lease Area at the expiration of this Lease or any Renewal Term without a written agreement, such tenancy shall be deemed a month -to -month tenancy under the same terms and conditions of this Lease. 6. Interference. Tenant and Landlord shall not operate in a manner which interferes with the other patty's operations on the Property. Tenant's Antenna Facilities and the use thereof shall not interfere with the use of any other communication or similar equipment of any kind and nature owned or operated by Landlord or other lessee, licensees, franchisees, etc., existing and operating on the Property prior in time to the commencement of this Lease, and subsequent to the installation by Tenant of the Antenna Facilities, Landlord agrees to exercise reasonable care to assure equipment of subsequent providers leasing space on the Property does not interfere With Tenant's Antenna Facilities operations. The Landlord, however, is not in any way responsible or liable for any interference with Tenant's use of Landlords Property, which may be caused by the use and operation of any other tenant's equipment, even if caused by new technology, so long as such equipment continues to operate within its existing frequencies and in compliance with all applicable laws and FCC rules and regulations. In the event there is interference between Tenant and any third party, such interference will be resolved by and between the parties affected; however, if such interference cannot be resolved to Tenant's satisfaction within forty-eight (48) hours from commencement of such interference, then the parties acknowledge that Tenant will suffer irreparable injury, and therefore, Tenant will have the right, in addition to any other rights that it may have at law or in equity, to terminate this Lease upon 30 days notice to Landlord and restore the Landlord's Property to its original condition, reasonable wear and tear and loss due to casualty or other causes beyond Tenant's control excepted. 7, Improvements: Utilities; Access. if to Tenant, to: c/o Cingular Wirelas$ LLC Attn: Network Real Estate Administration 6100 Atlantic Boulevard Norcross, GA 30071 Re: Site — SS02 Auburn If to Landlord. to: Public Works Director City of Auburn 25 West Main St. Auburn, WA 98001 W{th a coot/ to: Cingular Wireless PCS, LLC Attn: Legal Department 15 East Midland Avenue Paramus, NJ 07652 Re: Site —SS02 Auburn With a coot/ to: City Attorney City of Auburn 25 West Main St, Auburn, WA 98001 13. Quiet Eniovment, Title and Authority. Landlord covenants and warrants to Tenant that (i) Landlord has full right, power and authority to execute this Lease; (11) 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 Lease Area; and (111) execution and performance of this Lease will not violate any laws, ordinances, covenants, or the provisions of any mortgage, lease, or other agreement binding on Landlord. 14. Environmental Laws. Landlord represents that it has no knowledge of any substance, chemical or waste (collectively, "Hazardous Substance") on the Property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. 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 laws, for all spills or other releases of any Hazardous Substance not caused in whole or in part by Tenant, that have occurred or which may occur on the Property. 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. Landlord agrees to defend, indemnify and hold Tenant harmless from Claims resulting from Actions on the Property not caused by Landlord or Tenant prior to and during the Initial Term and any Renewal Term of this Lease. 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 14 shall survive the termination or expiration of this Lease. 15. Assignment and Subleasing. All of the terms and provisions contained herein shall inure to the benefit of and shal{ be binding upon the parties hereto and ihelr respective heirs, legal representatives, successors and assigns. This Lease shall not be assigned by Tenant without the express written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned. Any attempted assignment in violation of this Section shall be void. The transfer of the rights and obligations of Tenant to a parent, subsidiary, or other affiliate of Tenant, or to any successor4ri"interest or entity acquiring fifty-one percent (51%) or more of Tenant's stock or assets, shall not be deemed an assignment. Tenant shall give to Landlord thirty (30) days' prior written notice of any such transfer. (a) Tenant shall have the right, at its expense, to erect and maintain on the Lease Area, improvements, personal property and facilities necessary to operate its communications system, including, antenna tower and base, radio transmitting and receiving antennas, and related cables and conduits, equipment shelters and/or cabinets and related cables and utility lines and a location based system, including coaxial cable, base units and other associated equipment as such location based system may be permitted by any county, state or federal agency/department. Tenant shall have the right to alter, replace, and expand within the confines of the Lease Area as defined in Section 1 and without interference to other providers / tenants, enhance and upgrade the Antenna Facilities at any time during the term of this Lease. Tenant shall cause all construction to occur lien -free and in compliance with all applicable laws and ordinances. Landlord acknowledges that it shall not interfere with any aspects of construction, including, attempting to direct construction personnel as to the location of or method of installation of the Antenna Facilities. The Antenna Facilities shall remain the exclusive property of Tenant. Tenant shall have the right to remove the Antenna Facilities at any time during and upon the expiration or termination of this Lease. (b) Tenant shall, at its sole expense, secure the Lease Area with a perimeter security fence including a gate at the entrance. (c) Tenant shall, at Tenant's expense, keep and maintain the Lease Area and Antenna Facilities now or hereafter located on the Property in commercially reasonable condition and repair during the term of this Lease, normal wear and tear and loss due to casualty or other causes beyond Tenant's control excepted. Upon termination or expiration of this Lease, the Lease Area and Antenna Facilities areas shall be returned to Landlord in good, usable condition, normal wear and tear and loss due to casualty or other causes beyond Tenant's control excepted, within ninety (90) days. (d) Tenant shall have the right to install utilities, power and telephone, at Tenant's expense, and to improve the present utilities on the Property (including, but not limited to, the installation of emergency power generators). Landlord agrees to cooperate with Tenant in Its reasonable efforts to acquire necessary utility service. Tenant shall, wherever practicable, install separate meters for utilities used on the Property by Tenant. Landlord shall diligently correct any variation, interruption or failure of utility service within Landlord's control. (a) Tenant shall have 24-hours-a-day, 7-days-a-week access to the Lease Area ("Access") at all times during the Initial Term of this Lease and any Renewal Term. In the event Landlord, its employees or agents unreasonably deny Access to Tenant, its employees or agents, Tenant shall, without waiving any other rights that it may have at law or in equity, deduct from Rent amounts due under this Lease an amount equal to Fifty and no/100 Dollars ($50.00) per day for each day that Access is impeded or denied. 8. Termination. Except as otherwise provided herein, this Lease may be terminated, without any penalty or further liability as follows: (a) upon thirty (30) days' written notice by Landlord if Tenant fails to cure a default for payment of amounts due under this Lease within that thirty (30) day period; (b) immediately if Tenant is unable to obtain, maintain, or otherwise forfeits or cancels any license (including, without limitation, an FCC license), permit or any Governmental Approval necessary to the installation and/or operation of the Antenna Facilities or Tenant's business; (c) upon ninety (90) days' written notice by Tenant if the Lease Area or the Antenna Facilities are, or become unacceptable under Tenant's design or engineering specifications for its Antenna Facilities or the communications system to which the Antenna Facilities belong; 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 Lease. Notwithstanding the foregoing, Tenant shall pay any personal property tax, State leasehold tax, excise tax, real property tax or any other tax or fee which are directly attributable to the presence or Installation of Tenant's Antenna Facilities, only for so long as this Lease has not expired of its own terms or is not terminated by either party. Landlord hereby grants to Tenant the right to challenge, whether in a Court, Administrative Proceeding, or other venue, on behalf of Landlord and/or Tenant, any personal property or real property tax assessments, State leasehold tax or excise tax that may affect Tenant. If Landlord receives notice of any personal property or real property tax assessment, State leasehold tax or excise tax against the Landlord, which may affect Tenant and is directly attributable to Tenant's installation, Landlord shall provide timely notice of the assessment to Tenant sufficient to allow Tenant to consent to or challenge such assessment. Further, Landlord shall provide to Tenant any and all documentation associated with the assessment and shall execute any and all documents reasonably necessary to effectuate the intent of this Section 10. 11 Insurance and Subrogation and Indemnification. (a) Tenant shall provide Commercial General Liability Insurance naming Landlord (the Clty of Auburn) as additional Insured in an aggregate amount of Two Million and no/100 dollars ($$2,000,000,00). Tenant may satisfy this requirement by obtaining the appropriate endorsement to any master policy of liability insurance Tenant may maintain. (b) Tenant shall indemnify, protect, defend and hold Landlord and its employees and agents harmless from and against any and all claims, liabilities, judgments, costs, damages, and expenses, Including reasonable attorney's fees, arising out of or in any way related to Tenant's operation of the Antenna Facilities, including, but not limited to, the installation, maintenance, operation or removal thereof, except to the extent that such claim, liability, judgment, cost, damage or expense arises out of the negligent act or omission, or willful misconduct of Landlord or its employees or agents.' Landlord shall not be liable to Tenant, its agents, employees and contractors for damage to the Antenna Facilities or any other property belonging to Tenant from any cause, except for any damage caused by the negligent act or omission or willful misconduct of Landlord or its employees or agents. Tenant waives all claims against Landlord and its employees and agents for damage to persons or Antenna Facilities or property arising for any reason other than a claim based on the negligent act or omission or willful misconduct of Landlord or its employees or agents. Landlord and its employees and agents shall have no liability to Tenant for any interruption of any utility service unless caused by the negligent act or omission or willful misconduct of Landlord or its employees or agents. Should a court of competent jurisdiction determine that this Lease is subject to RCW 4.24.1150 then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Tenant and the Landlord, its officers, officials, employees and volunteers, the Landlord's liability hereunder shall be only to the extent of the Landlord's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Tenant's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Lease. 12. Notices. All notices, requests, demands and other communications shall be in writing and are effective three (3) days after deposit in the U.S. mail, cert'rfied and postage paid, or upon receipt if personally delivered or sent by next -business -day delivery via a nationally recognized overnight courier to the addresses set forth below. Landlord or Tenant may from time to time designate any other address for this purpose by providing written notice to the other party. (d) immediately upon written notice by Tenant if the Lease Area or the Antenna Facilities are destroyed or damaged so as in Tenant's reasonable judgment to substantially and adversely affect the effective use of the Antenna Facilities. In such event, all rights and obligations of the parties shall cease as of the date of the damage or destruction, and Tenant shall be entitled to the reimbursement on a prorated basis of any Rent prepaid by Tenant. if Tenant elects to continue this Lease, then all Rent shall abate until the Lease Area and/or the Antenna Facilities are restored to the condition existing immediately prior to such damage or destruction; or (e) at the time title to the Property transfers to a condemning authority, pursuant to a taking of all or a portion of the Property sufficient in Tenant's determination to render the Lease Area unsuitable for Tenant's use. Landlord and Tenant shall each be entitled to pursue their own separate awards with respect to such taking. (f) Landlord may terminate this Lease if Landlord needs the Lease Area for expansion of Landlord's responsibility to provide its services, and Landlord has no reasonable or economical alternative site available, provided Landlord provides Tenant written notice twelve (12) months in advance of Landlord's need to re-establish Landlord's sole use of the Lease Area. Upon Tenant's receipt of written notice, Tenant shall have six (6) months to submit to Landlord alternative locations for its Antenna Facilities. Such alternative locations may be on the Property or other properties owned or managed by Landlord. Landlord shall evaluate such alternatives and advise Tenant in writing if one or more of the alternatives is suitable to accommodate Tenant's Antenna Facilities. To be a suitable alternative location, such location will not unreasonably result in any interruption of the communications service of Tenant on Landlord's Property; nor will it impair, or in any manner alter, the quality of communications service provided by Tenant on and from Landlord's owned or managed properties. Tenant shall submit additional relevant information to assist the Landlord in making such evaluation. Landlord shall give each alternative location proposed by Tenant full and fair consideration, within a reasonable time so as to allow for the relocation work to be performed in a timely manner. If, in Tenant's reasonable judgment, no suitable alternative location can be found, Tenant shall remove its Antenna Facilities as otherwise provided in this Section 7 (c) of this Lease. if an alternative location for Tenant's Antenna Facilities is found, Landlord and Tenant agree to enter into a new Lease Agreement with the same terms and conditions of this Lease. (g) If, during the term of this Lease there is a determination made pursuant to an official unappealable order of the Federal Communications Commission or any other applicable law, order, ordinance, regulation, directive, or standard as stated above that use of the Antenna Facilities by the Tenant poses a human health hazard which cannot be remediated, then (a) Tenant shall immediately cease all operations of the Antenna Facilities, and (b) the Lease shall terminate as of the date of such order without further liability. If for reasons related to public health, safety or welfare, Landlord determines that this Lease must be terminated, then Landlord reserves rights of unilateral termination and will do so by providing Tenant with a six (6) month written notice. (h) Tenant shall be entitled to a pro rate refund of Its prepaid Rent for any termination of this Lease by Landlord pursuant to Subsection 8(f) or 8(g). 9 Default and Right to Cure. Notwithstanding anything contained herein to the contrary and without waiving any other rights granted to it at law or in equity, each party shall have the right, but not the obligation, to terminate this Lease on written notice pursuant to Section 12 hereof, to take effect immediately, If the other party (I) fails to perform any covenant for a period of thirty (30) days after receipt of written notice thereof to cure or (11) commits a material breach of this Lease and fails to diligently pursue such cure to its completion after sixty (60) days' written notice to the defaulting party. 10. Taxes. Landlord shall pay when due all real property taxes or other fees and assessments for the Property, including the Lease Area. In the event that Landlord fails to pay Addit onally, Tenant may, upon notice to Landlord, mortgage or grant a security interest in this Lease and the Antenna Facilities, and may assign this Lease and the Antenna Facilities to any mortgagees or holders of security interests, including their successors or assigns (collectively "Mortgagees'), provided such Mortgagees agree to be bound by the terms and provisions of this Lease. In such event, Landlord shall execute such consent to leasehold financing as may reasonably be required by Mortgagees. Landlord agrees to notify Tenant and Tenaht's Mortgagees simultaneously of any default by Tenant and to give Mortgagees the same right to cure any default as Tenant or to remove any property of Tenant or Mortgagees located on the Lease Area, except that the cure period for any Mortgagees shall not be less than thirty (30) days after receipt of the default notice, as provided in Section 9 of this Lease, All such notices to Mortgagees shall be sent to Mortgagees at the address specified by Tenant. Failure by Landlord to give Mortgagees such notice shall not diminish Landlord's rights against Tenant, but shall preserve all rights of Mortgagees to cure any default and to remove any property of Tenant or Mortgagees located on the Lease Area, The Lease Area shall be used exclusively as a site for a wireless telecommunications facility. The Tenant may allow use of all or a portion of the Lease Area or their Antenna Facilities by others, with prior written approval of the Landlord. 16. Removal of Antenna Facilities, The Antenna Facilities are and shall remain the property of the Tenant and upon the expiration or earlier termination of this Lease, Tenant shall, at Tenant's sole cost and expense, remove the Antenna Facilities and restore the Lease Area to Its original condition, normal wear and tear and loss due to casualty or other causes beyond Tenant's control excluded. 17. Miscellaneous. (a) The substantially prevailing party in any litigation, including any arbitration to which the parties shall submit, arising hereunder shall be entitled to its reasonable attorneys' fees and court costs, including appeals, if any. (b) This Lease 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 Lease must be in writing and executed by both parties. At such time as the Auburn City Council approves any regulation affecting telecommunications, Tenant agrees to amend this Lease, as determined by the Landlord in order to comply with any future ordinance related to telecommunications provided, however, that in no event shall such regulation (1) materially interfere with or affect Tenant's operation of its Antenna Facilities; or (11) increase Tenant's financial obligations under the terms of this Lease, except as provided herein, or impose some new financial obligations not already contemplated by this Lease. No amendment, change or modification of this Lease shall be valid, unless in writing and signed by all parties hereto. (c) Each party agrees to cooperate with the other in executing any documents (including a Memorandum of Lease in substantially the form attached hereto as Exhibit A) necessary to protect Its rights or use of the Lease Area, The Memorandum of Lease may be recorded in place of this Lease 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 fumish to Tenant a non -disturbance and attornment agreement for each such mortgage or deed of trust, in a form reasonably acceptable to Tenant. Tenant may obtain title insurance on its interest in the Lease Area. (d) This Lease shall be construed in accordance with the laws of the state in which the Property is located. (e) If any term of this Lease is found to be void or invalid, such finding shall not affect the remaining terms of this Lease, 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. No provision of this Lease will be deemed waived by either party unless expressly waived in writing signed by the waiving party. No waiver shall be implied by delay or any other act or omission of either party. No waiver by either party of any provision of this Lease shall be deemed a waiver of such provision with respect to any subsequent matter relating to such provision. (f) The persons who have executed this Lease represent and warrant that they are duly authorized to execute this Lease in their individual or representative capacity as indicated. (g) This Lease 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. (h) All Exhibits referred to herein and any Addenda are incorporated herein for all purposes. The parties understand and acknowledge that Exhibit A (Memorandum of Lease) is attached to this Site Lease Agreement. The terms of all Exhibits are incorporated herein for all purposes. (1) If Landlord is represented by any broker or any other leasing agent, Landlord is responsible for all commission fees or other payment to such agent, and agrees to indemnify and hold Tenant harmless from all claims by such broker or anyone claiming through such broker. If Tenant is represented by any broker or any other [basing agent, Tenant is responsible for all commission fee or other payment to such agent, and agrees to indemnify and hold Landlord harmless from all claims by such broker or anyone claiming through such broker. 18. Headings. The caption and paragraph headings used In this Lease are inserted for convenience of reference only and.are not intended to define, limit or affect the interpretation or construction of any term or provision hereof. 19. Liens. Except with respect to activities for which Landlord is responsible, Tenant shall pay as d I claims for work done on, and for services rendered or material furnished to, the Antenna acllity, n sh Keep Antenna Facility free from all liens. LANDLO ubum By: Peter B. Lewis Its: Mayor SEP 19 2005 Date: r� Taxpayer lD Number: 91� 6a 9 Z2 Z2 , TENANT: FV New Cingular Wireless PCS, LLC a Delaware limited liability company By: � Prtnt Name: Its: Date: to follow on next page) STATE OF G(Ilt ) ss. COUNTY OF� I certify that I know or have satisfactory evidence that LeLe! O k d rJ' is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated tha he was authorized to execute the in/g/tru ent of/d /ackrowledged It as the of U r d. fits - bat- 21 to be the fre6 and voluntary act of such party for the uses and purposes mentioned In the instrument. Dated: JL4L1 O71 [p� t.L� it rvorary ruouc c`pQ�` �Ssio .Ayr, Print Name. ')as A\ ^f dr , residing at X4-e JAw fo°NOrq �10 :�y'� My commission expires ld�?sy7 iiy�'•�. V103L10 fiW NCa (Use this spad8�fonfTotyary stamp/seal) STATE OF Al ) COUNTY OF ss. ) I certify that I know or have satisfactory evidence that Is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the &;W60 i% UE DigltTo of New Cingular Wireless PCS, LLC, the limited liability company, to be the free and voluntary act of such party for the uses and purposes mentioned In the instrument. Dated: Z le, /) residing ate Notary Vubiic y commission State of Washington HEATHER MAREE WftIGHT Appointment Expires Mor 14, 20D9 space Exhibit A MEMORANDUM OF LEASE t g y r o the Site Lease Agreement executed on the 9'' day of 2005, by and between the City of Auburn, as Landlord, and New Cingular Wireless P S, LLC, as Tenant. (MOL to follow on next page)