HomeMy WebLinkAbout2726 RESOLUTION NO. 5726
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO
EXECUTE THE FIRST AMENDMENT TO THE SITE
AGREEMENT BETWEEN THE CITY OF AUBURN AND SBA
2012 TC ASSETS LLC RELATED TO LEASING GAME
FARM PARK PROPERTY FOR A TELECOMMUNICATIONS
TOWER
WHEREAS, in 2006 the City of Auburn entered into a lease agreement with Sprint
for the locating of an antenna tower in Game Farm Park; and
WHEREAS, Sprint later assigned the lease to SBA 2012 TC Assets, a Florida
company, who continued as the lessee through the initial term of the lease; and
WHEREAS, an extended term of the lease agreement will expire in 2026 and the
City and SBA desire at this time to renew and extend the agreement and revise its various
terms and conditions.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, RESOLVES as follows:
Section 1. The Mayor shall execute the First Amendment to the Site Agreement
between the City of Auburn and SBA 2012 TC Assets, which amendment shall be in
substantial conformity with the agreement attached as Exhibit A.
Section 2. The Mayor is authorized to implement those administrative
procedures necessary to carry out the directives of this legislation.
Resolution No. 5726
April 4, 2023
Page 1 of 2 Rev.2019
Section 3. This Resolution will take effect and be in full force on passage and
signatures.
Dated and Signed this 17th day of July, 2023.
CITY OF AUBURN
NA CY B S, MAYOR
ATTEST: APPR e l ,AS• =FORM:
'r
Shawn Campbell, MMC, itk City A'n",---"TigniV
Resolution No. 5726
April 4, 2023
Page 2 of 2 Rev.2019
Prepared by: Denise Scherer
After recording return to: Rita Drinkwater
SBA Network Services, LLC
8051 Congress Avenue
Boca Raton, FL 33487
Ph: 800-487-7483 ext. 7872
Parcel ID: 2921059069
FIRST AMENDMENT TO SITE AGREEMENT
THIS FIRST AMENDMENT TO SITE AGREEMENT ("First Amendment") is
executed this V-1,1"— day of—S , 2023 ("Effective Date") by and between
CITY OF AUBURN (WA), a Washinton municipal corporation, having an address at
25 W Main ST, Auburn, WA 98001-4916 ("Owner") and SBA 2012 TC ASSETS, LLC, a
Delaware limited liability company, having a principal office located at 8051 Congress
Avenue, Boca Raton, FL 33487-1307 (hereinafter referred to as "SBA").
WHEREAS,Owner and Sprint Spectrum L.P.,a Delaware limited partnership, entered
into that certain Site Agreement, dated May 9, 2006, as evidenced by that certain
Memorandum of PCS Site Agreement dated May 9, 2006, and recorded June 16, 2006 as
Instrument #20060616002691, as amended and assigned from time to time (collectively,
"Agreement"), and ultimately assigned to SBA, f/k/a TowerCo Assets LLC, a Delaware
limited liability company, successor by merger to Tower Entity 2, LLC, a Delaware limited
liability company, pursuant to that certain Assignment and Assumption of Lease dated
September 23, 2008 and recorded October 22, 2008 as Instrument #20081022000413; said
recordings of the Recorder's Office of King County, Washington,for SBA's use of a portion
of the real property ("Site") located at 3030 R. Street, Auburn, WA 98002 ("Property"),
being more particularly described in the attached Exhibit "A"; and
WHEREAS, Owner and SBA desire and intend to amend and supplement the
Agreement as provided herein.
00603611-v8
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WA48164-A/Auburn Game Farm
NOW,THEREFORE,for good and valuable consideration,the receipt and sufficiency
of which is hereby acknowledged, the parties hereto covenant, agree and bind themselves to
the following modifications to the Agreement:
1. Section 2. Term, of the Agreement is hereby amended to read as follows:
The Agreement will be automatically renewed for four(4) additional successive
terms of five (5)years (each a"Renewal Term"), unless SBA notifies Owner of
its intention not to renew the Agreement not less than ninety (90) days prior to
the expiration of any Renewal Term. Unless SBA so notifies Owner, the first of
the above Renewal Terms shall commence on June 1, 2026 upon the expiration
of the current term on May 31, 2026.
2. Subsection(a)of Section 3."Rent"of the Agreement is hereby amended to read
as follows:
Owner acknowledges receipt of the one-time aggregate payment of $100.00,
which is the entire rent due for the period from the Lease Commencement Date
until the Rent Commencement Date. The Rent Commencement Date is defined
as the earliest to occur of the following: (a) the first day of the month that is 60
days after the issuance of the Sprint building permit, or (b) the first day of the
month that is 60 days after the date Sprint commences construction of the
Antenna Facilities at the Site. Starting on the Rent Commencement Date and
on the 1st day of every month thereafter, Sprint will pay rent in advance in equal
monthly installments of$3,000 ("Rent"), until increased as set forth herein. In
addition to Rent, SBA shall pay to Owner the statutory leasehold excise tax per
RCW Chapter 82.29A, which shall be paid with each Rent payment.
Notwithstanding anything contained in this Section, Sprint's obligation to pay
Rent is contingent upon Sprint's receipt of a W-9 form setting forth the tax
identification number of Owner or of the person or entity to whom Rent checks
are to be made payable as directed in writing by Owner.
3. Section 3(b) of the Agreement is hereby amended to read as follows:
The Rent shall increase annually over the Rent payable the preceding year in
proportion to the increase of the "All terms" 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-Tacoma-Bellevue
Metropolitan Area (the "CPI"). The first adjustment shall be based on the
amount, if any, by which the CPI 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 12th month of the lease term has increased over the
CPI for the 12th month of the proceeding 12-month period. It shall be the
responsibility of the Owner to track the CPI and notify the Sprint of increases or
reduction in the Rent. If at any time the CPI ceases to incorporate a significant
number of items, if a substantial change is made in the method of establishing
00603611-v8
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WA48164-A/Auburn Game Farm
the CPI, or if issuance of the CPI shall be discontinued , then the Owner and
Sprint 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, than the Owner
shall select the index closet to the CPI. In either case,the substitute index chosen
shall result in increases in Rent similar to those that has been, or would have
been, generated but the CPI.
4. The Agreement is hereby amended to include a new subsection (d), "Revenue
Share" in Section 3 as follows:
Effective upon full execution of this Amendment, in addition to the Rent Owner
shall receive an additional fifteen percent (15%) of the annual gross revenue
("Revenue Share") generated from all existing and future "Sublessees",
including but not limited to, PCS providers such as AT&T, Verizon, T-Mobile,
and Dish using the Site. All Revenue Share contained herein shall be paid
annually with Owner's July rent check for the previous twelve (12)month cycle
(e.g. June 1 —May 31) in arrears upon Lessee's receipt of rental payment from
its Sublessees. SBA shall provide Owner with a summary report listing the
Sublessees on the tower and each Sublessee's annual rent with Owner's rent
check. Revenue Share paid to Owner shall be inclusive of and not require
additional payment of leasehold excise tax
Any amounts owed or due and payable to Owner under this subsection shall
survive the expiration or earlier termination of this Agreement.
5. Section 6. "Notices", of the Agreement is hereby amended to read as follows:
If to Owner: City of Auburn (WA)
25 W Main St
Auburn, WA 98001
If to SBA: SBA 2012 TC Assets, LLC
Attn: Site Administration
8051 Congress Avenue
Boca Raton, FL 33487-1307
Re: WA48164-A/Auburn Game Farm
6. Subsection (b) of Section 9. "Interference" of the Agreement is hereby
amended to read as follows:
Notwithstanding the foregoing, Owner shall have the right to install additional
equipment for government and public safety purposes(including, but not limited
to police, fire, and ambulance services) at or near the Site that might interfere
00603611-v8
3
WA48164-AJAuburn Game Farm
with Sprint's Antenna Facilities. Both Owner and SBA will cooperate in good
faith to design or modify their own systems at their own expense to eliminate
interference or reduce interference to reasonably acceptable levels ("Eliminate
Interference"). If the parties cannot Eliminate Interference: (i) Owner agrees to
use good faith efforts to lease to SBA a nearby site that is owned by Owner(an
"Alternate Site") under the same terms and conditions here, or (ii) if the parties
cannot agree upon an Alternate Site, Owner shall have the right to terminate this
Agreement upon ninety (90) days prior written notice to SBA. If SBA must
relocate its Antenna Facilities, Owner agrees to allow SBA to install temporary
Antenna Facilities at an Alternate Site to prevent an interruption in SBA's
service during the relocation process. Upon thirty (30) days prior written notice
from Owner, SBA shall allow Owner to access and use any existing or new
conduit on the tower controlled by SBA.
7. The Agreement is hereby amended to include a new Section 21. "Right of First
Refusal" to read as follows:
If at any time during the term of the Agreement, Owner receives from any
company or its affiliates that either (a) is engaged in the business of owning,
operating, or maintaining wireless communications facilities, or (b) has an
interest as a landlord, tenant, or in any other capacity in any wireless
communications ground lease or easement a bona fide written offer to sell,
assign,convey,lease or otherwise transfer the Site or the Property,or any portion
thereof, or create any interest in the current or future Rent, which Owner desire
to accept (the "Offer"), Owner shall first give SBA written notice (including a
copy of the proposed contract) of such Offer prior to becoming obligated under
such Offer, with such notice giving SBA the right to acquire the interest
described in the Offer on the terms set forth in the Offer. SBA shall have a period
of thirty (30) days after receipt of Owner's notice and terms to exercise SBA's
right of first refusal by notifying Owner in writing. If SBA has not exercised its
right of first refusal in writing to Owner within such thirty (30) day period, the
right of first refusal will be deemed rejected by SBA and Owner will be
unrestrained to accept the Offer.
8. Upon full execution of this First Amendment, SBA shall pay to Owner a one-
time payment of Fifteen Thousand and 00/100 Dollars ($15,000.00).
9. Capitalized terms not defined in this First Amendment will have the meaning
ascribed to such terms in the Agreement.
10. This First Amendment will be governed by and construed and enforced in
accordance with the laws of the state in which the Property is located without
regard to principles of conflicts of law.
00603611-v8
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WA48164-A/Auburn Game Farm
11. Except as specifically set forth in this First Amendment, the Agreement is
otherwise unmodified and remains in full force and effect and is hereby ratified
and reaffirmed. In the event of any inconsistencies between the Agreement and
this First Amendment,the terms of this First Amendment shall take precedence.
12. The legal description in Exhibit A to the Agreement is hereby deleted in its
entirety and replaced with the legal description attached to this Amendment as
Exhibit 1. SBA may replace and substitute(at SBA's sole cost and expense)such
exhibit with an accurate survey and legal descriptions of the Site and re-record
this First Amendment upon obtaining Owner's written consent, which consent
shall not be unreasonably withheld, conditioned, or delayed. Following such re-
recording, the descriptions of the Site described therein shall serve as the
descriptions for same for all purposes under the Agreement.
13. Owner represents and warrants to SBA that Owner is the sole owner in fee
simple title to the Property and Owner's interest under the Agreement and that
consent or approval of no other person or body, other than the Auburn City
Council is necessary for Owner to enter into this First Amendment.
14. This First Amendment may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall constitute
one and the same First Amendment.
15. SBA shall have the right to record this First Amendment.
[The remainder of this page is intentionally left blank. Signatures to follow.]
00603611-v8
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WA48164-A/Auburn Game Farm
IN WITNESS WHEREOF,the parties have executed this First Amendment as of
the day and year first above written.
WITNESSES: OWNER:
City of Auburn (WA), a Washington
\ municipal corporation
M
,
B --- a ' i---- By: A ` r. _ .._ .
Kendra•`meau, Cit Attorney ancy Bac ayor
STATE OF WASHINGTON
COUNTY OF \h,,.,c\
On thisNN- day-cyr-- — , 2023, before me, the undersigned, a Notary
Public in and for the State of Was ington, duly commissioned and sworn, personally
appeared •C\ck".cyc..‘14.‘.j as �'��.,,`:5-1/4,.. of
the City of Auburn (WA), a Washington municipal corporation, to me known to be the
individual described in and who executed the foregoing instrument and acknowledged to me
that she signed and sealed this said instrument as her free and voluntary act and deed for the
use and purposes therein mentioned, and on oath stated that he/she is authorized to execute
the said instrument.
Given under my hand and official seal this \\' day o1-. .`,.�` , 2023.
\x%0"\\11111 , ,` ,
. 0"Am*,, 4 ji�� Notary Public
yQ o 01AZ\
<< iii My Commission Expires ‘.3%-\f �f a,0a„L\
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(NOTAVA\ALpio' lb,4' 0 :
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00603611-v8
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WA48164-A/Auburn Game Farm
WITNESSES: SBA:
SBA 2012 TC Assets, LLC, a Delaware
limited liab' ' comp. y
Signature: 0..A---
OilBy: A.
Print Name: Arrlu.. e.."-- ( Joshua , • '• xecutive
,.., 75Vice P - 4: •nd General Counsel
Signature: 1.--
Print Name: .gri+Fa i ,Jan
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me by means of [X] physical
presence or[] online notarization,this 2.1 day of j1uriQ-- ,2023, by Joshua Koenig,
Executive Vice President and General Counsel of SBA 2012 TC Assets, LLC, a Delaware
limited liability company, on behalf of the company, who is personally known to me and did
not take an oath.
6In
L........
''"ti:-.. TIFFANY N.GONSALVES otary L1bli� `
`,, `• Commission#GG 923651 My Commission Expires 1111123
co+7a?/ Expires November 7,2023
(NOTARY SEAL)
00603611-v8
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WA48164-A/Auburn Game Farm
•
EXHIBIT "1"
Legal description of the Property described as New Lot 2 in record of survey under
recording numbers 20051019900001
NEW LOT 2 DESCRIPTION
:MN CI)r SP Attu. 10'1
1141IiF 101[:0181 OF 5CCT13,1 29, rayr4s,N.7'I WADI, 1147112 1.4:;1,
•V„IN'KING Cl.LNTY,NA IAN:1CN.C£S.rN£ICO AS FCLLO'A!';
CC.0i91EN'L Ol E Aft)7;
CrisFr nit'M'lit(11J(IC
ALSO
THAI PFJ.-CF/01,GVs£PN1117NT LO"9 19N4 ful`ATffPl I Cf 7111
18(X711114.1 214891 CN 50.11HL4IT SILO'M'F.R ROA?fiifflteCti.
f.4 J'Y(J/i CGr4 m•11>NAj TT2AAYIC[Ii?Tfi 8LT t Cf 41454N0TON
TO NINI:1111.18 IT 171 M171A1.NT tic fi.147f1)IN•ITR m iixi
NLYMF4 113510;
I All FI III( 91:114 tlrlrN)RYZP;
AL50
fi:Y c(`VS1.N-LOT i0
1111 G'1 Iill NIUn {!;111118)w4+:
Ale)
0C'Q'RWCtrr LOT If:
LIFL t THAT 111:91.18 CCNMEfTif'D NWG 03UN:Y FCR HOA]
441kP,nl';Nr I:tLU NtCFPV G Jt&''&R PFCCAt't-IG Ni:YEE4 ?SGltl 7•
ANG LACER!'j4"4'N11CN CO'IAFfFC TO 9k Il 1r 1700 hit t
P.118N00F1 EfitEEO 11001011 ur011 NECCPG9C,LW9EA S9910 TA;
RMI:t1X.:
Prepared by: Denise Scherer
After recording return to: Rita Drinkwater
SBA Network Services, LLC
8051 Congress Avenue
Boca Raton,FL 33487
Ph: 800-487-7483 ext. 7872
Parcel ID: 2921059069
FIRST AMENDMENT TO SITE AGREEMENT
THIS FIRST AMENDMENT TO SITE AGREEMENT ("First Amendment") is
executed this V\411- day of A , 2023 ("Effective Date") by and between
CITY OF AUBURN (WA), a Washington municipal corporation, having an address at
25 W Main ST,Auburn, WA 98001-4916 ("Owner") and SBA 2012 TC ASSETS, LLC, a
Delaware limited liability company, having a principal office located at 8051 Congress
Avenue, Boca Raton, FL 33487-1307 (hereinafter referred to as "SBA").
WHEREAS, Owner and Sprint Spectrum L.P.,a Delaware limited partnership, entered
into that certain Site Agreement, dated May 9, 2006, as evidenced by that certain
Memorandum of PCS Site Agreement dated May 9, 2006, and recorded June 16, 2006 as
Instrument #20060616002691, as amended and assigned from time to time (collectively,
"Agreement"), and ultimately assigned to SBA, f/k/a TowerCo Assets LLC, a Delaware
limited liability company, successor by merger to Tower Entity 2, LLC, a Delaware limited
liability company, pursuant to that certain Assignment and Assumption of Lease dated
September 23, 2008 and recorded October 22, 2008 as Instrument#20081022000413; said
recordings of the Recorder's Office of King County,Washington,for SBA's use of a portion
of the real property ("Site") located at 3030 R. Street, Auburn, WA 98002 ("Property"),
being more particularly described in the attached Exhibit"A"; and
WHEREAS, Owner and SBA desire and intend to amend and supplement the
Agreement as provided herein.
00603611-v8
1
WA48164-A/Auburn Game Farm
NOW,THEREFORE,for good and valuable consideration,the receipt and sufficiency
of which is hereby acknowledged, the parties hereto covenant, agree and bind themselves to
the following modifications to the Agreement:
1. Section 2. Term, of the Agreement is hereby amended to read as follows:
The Agreement will be automatically renewed for four(4)additional successive
terms of five (5)years (each a"Renewal Term"), unless SBA notifies Owner of
its intention not to renew the Agreement not less than ninety (90) days prior to
the expiration of any Renewal Term. Unless SBA so notifies Owner,the first of
the above Renewal Terms shall commence on June 1, 2026 upon the expiration
of the current term on May 31, 2026.
2. Subsection(a)of Section 3."Rent"of the Agreement is hereby amended to read
as follows:
Owner acknowledges receipt of the one-time aggregate payment of $100.00,
which is the entire rent due for the period from the Lease Commencement Date
until the Rent Commencement Date. The Rent Commencement Date is defined
as the earliest to occur of the following: (a) the first day of the month that is 60
days after the issuance of the Sprint building permit, or (b) the first day of the
month that is 60 days after the date Sprint commences construction of the
Antenna Facilities at the Site. Starting on the Rent Commencement Date and
on the 1St day of every month thereafter, Sprint will pay rent in advance in equal
monthly installments of$3,000 ("Rent"), until increased as set forth herein. In
addition to Rent, SBA shall pay to Owner the statutory leasehold excise tax per
RCW Chapter 82.29A, which shall be paid with each Rent payment.
Notwithstanding anything contained in this Section, Sprint's obligation to pay
Rent is contingent upon Sprint's receipt of a W-9 form setting forth the tax
identification number of Owner or of the person or entity to whom Rent checks
are to be made payable as directed in writing by Owner.
3. Section 3(b) of the Agreement is hereby amended to read as follows:
The Rent shall increase annually over the Rent payable the preceding year in
proportion to the increase of the "All terms" 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-Tacoma-Bellevue
Metropolitan Area (the "CPI"). The first adjustment shall be based on the
amount, if any, by which the CPI 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 12th month of the lease term has increased over the
CPI for the 12th month of the proceeding 12-month period. It shall be the
responsibility of the Owner to track the CPI and notify the Sprint of increases or
reduction in the Rent. If at any time the CPI ceases to incorporate a significant
number of items, if a substantial change is made in the method of establishing
00603611-v8 2
WA48164-A/Auburn Game Farm
the CPI, or if issuance of the CPI shall be discontinued , then the Owner and
Sprint 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, than the Owner
shall select the index closet to the CPI.In either case,the substitute index chosen
shall result in increases in Rent similar to those that has been, or would have
been, generated but the CPI.
4. The Agreement is hereby amended to include a new subsection (d), "Revenue
Share" in Section 3 as follows:
Effective upon full execution of this Amendment, in addition to the Rent Owner
shall receive an additional fifteen percent (15%) of the annual gross revenue
("Revenue Share") generated from all existing and future "Sublessees",
including but not limited to, PCS providers such as AT&T, Verizon, T-Mobile,
and Dish using the Site. All Revenue Share contained herein shall be paid
annually with Owner's July rent check for the previous twelve (12)month cycle
(e.g. June 1 —May 31) in arrears upon Lessee's receipt of rental payment from
its Sublessees. SBA shall provide Owner with a summary report listing the
Sublessees on the tower and each Sublessee's annual rent with Owner's rent
check. Revenue Share paid to Owner shall be inclusive of and not require
additional payment of leasehold excise tax
Any amounts owed or due and payable to Owner under this subsection shall
survive the expiration or earlier termination of this Agreement.
5. Section 6. "Notices", of the Agreement is hereby amended to read as follows:
If to Owner: City of Auburn (WA)
25 W Main St
Auburn, WA 98001
If to SBA: SBA 2012 TC Assets, LLC
Attn: Site Administration
8051 Congress Avenue
Boca Raton, FL 33487-1307
Re: WA48164-A/Auburn Game Farm
6. Subsection (b) of Section 9. "Interference" of the Agreement is hereby
amended to read as follows:
Notwithstanding the foregoing, Owner shall have the right to install additional
equipment for government and public safety purposes(including,but not limited
to police, fire, and ambulance services) at or near the Site that might interfere
00603611-v8 3
WA48164-A/Auburn Game Farm
with Sprint's Antenna Facilities. Both Owner and SBA will cooperate in good
faith to design or modify their own systems at their own expense to eliminate
interference or reduce interference to reasonably acceptable levels ("Eliminate
Interference"). If the parties cannot Eliminate Interference: (i) Owner agrees to
use good faith efforts to lease to SBA a nearby site that is owned by Owner(an
"Alternate Site")under the same terms and conditions here, or (ii) if the parties
cannot agree upon an Alternate Site, Owner shall have the right to terminate this
Agreement upon ninety (90) days prior written notice to SBA. If SBA must
relocate its Antenna Facilities, Owner agrees to allow SBA to install temporary
Antenna Facilities at an Alternate Site to prevent an interruption in SBA's
service during the relocation process. Upon thirty (30) days prior written notice
from Owner, SBA shall allow Owner to access and use any existing or new
conduit on the tower controlled by SBA.
7. The Agreement is hereby amended to include a new Section 21. "Right of First
Refusal"to read as follows:
If at any time during the term of the Agreement, Owner receives from any
company or its affiliates that either (a) is engaged in the business of owning,
operating, or maintaining wireless communications facilities, or (b) has an
interest as a landlord, tenant, or in any other capacity in any wireless
communications ground lease or easement a bona fide written offer to sell,
assign,convey,lease or otherwise transfer the Site or the Property,or any portion
thereof, or create any interest in the current or future Rent, which Owner desire
to accept (the "Offer"), Owner shall first give SBA written notice (including a
copy of the proposed contract) of such Offer prior to becoming obligated under
such Offer, with such notice giving SBA the right to acquire the interest
described in the Offer on the terms set forth in the Offer. SBA shall have a period
of thirty (30) days after receipt of Owner's notice and terms to exercise SBA's
right of first refusal by notifying Owner in writing. If SBA has not exercised its
right of first refusal in writing to Owner within such thirty (30) day period, the
right of first refusal will be deemed rejected by SBA and Owner will be
unrestrained to accept the Offer.
8. Upon full execution of this First Amendment, SBA shall pay to Owner a one-
time payment of Fifteen Thousand and 00/100 Dollars ($15,000.00).
9. Capitalized terms not defined in this First Amendment will have the meaning
ascribed to such terms in the Agreement.
10. This First Amendment will be governed by and construed and enforced in
accordance with the laws of the state in which the Property is located without
regard to principles of conflicts of law.
00603611-v8 4
WA48164-A/Auburn Game Farm
11. Except as specifically set forth in this First Amendment, the Agreement is
otherwise unmodified and remains in full force and effect and is hereby ratified
and reaffirmed. In the event of any inconsistencies between the Agreement and
this First Amendment,the terms of this First Amendment shall take precedence.
12. The legal description in Exhibit A to the Agreement is hereby deleted in its
entirety and replaced with the legal description attached to this Amendment as
Exhibit 1. SBA may replace and substitute(at SBA's sole cost and expense)such
exhibit with an accurate survey and legal descriptions of the Site and re-record
this First Amendment upon obtaining Owner's written consent, which consent
shall not be unreasonably withheld,conditioned, or delayed. Following such re-
recording, the descriptions of the Site described therein shall serve as the
descriptions for same for all purposes under the Agreement.
13. Owner represents and warrants to SBA that Owner is the sole owner in fee
simple title to the Property and Owner's interest under the Agreement and that
consent or approval of no other person or body, other than the Auburn City
Council is necessary for Owner to enter into this First Amendment.
14. This First Amendment may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall constitute
one and the same First Amendment.
15. SBA shall have the right to record this First Amendment.
[The remainder of this page is intentionally left blank. Signatures to follow.]
00603611-v8 5
WA48164-A/Auburn Game Farm
IN WITNESS WHEREOF,the parties have executed this First Amendment as of
the day and year first above written.
WITNESSES: OWNER:
City of Auburn (WA), a Washington
municipal corporation
/ •,.--, By: obs. ,
By: y y
Kendau Ci , Attorney anc B. Maor
STATE OF WASHINGTON
COUNTY OF \L,,mc\
On this\'''‘,1/4'1'day of- -,..,‘‘. , 2023, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally
appeared ' .....c.\1...%...% as n. of
the City of Auburn ( A), a Washington municipal corporation, o me known to be the
individual described in and who executed the foregoing instrument and acknowledged to me
that she signed and sealed this said instrument as her free and voluntary act and deed for the
use and purposes therein mentioned, and on oath stated that he/she is authorized to execute
the said instrument.
Given under my hand and official seal this\'1.'°'' day of-Z" , 2023.
1 Notary Public
+��� ���at�,eF<��f My Commission Expires c,/c /a,atk
i:'v) Ms, i
(NOTARISE Y,)15- 6 1 oz
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00603611-v8 6
WA48164-A/Auburn Game Farm
WITNESSES: SBA:
SBA 2012 TC Assets, LLC, a Delaware
limited liability company
Signature: cLC 41.4.2crp(_ /,'
BY: ..1-
Print Name: .� �pL Joshua I •;ni Executive
Vice P ; d General Counsel
Signature: AP lI
Print Name: y.
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me by means of [X] physical
presence or[] online notarization,this 21 day of �un e� ,2023, by Joshua Koenig,
Executive Vice President and General Counsel of SBA 2012 TC Assets, LLC, a Delaware
limited liability company, on behalf of the company, who is personally known to me and did
not take an oath.
"""4;•; TIFFANY N.GONSALVES — r'J
* Commission#GG 923651 Notary P� �
.';!•‘,44V' Expires November T,2023 My Commission Expires 1311 13
(NOTARY SEAL)
00603611-v8
7
WA48164-A/Auburn Game Farm
EXHIBIT "1"
Legal description of the Property described as New Lot 2 in record of survey under
recording numbers 20051019900001
NEIN LOT 2 DESCRIP11ON
irf N I (a' AL1°T1'T4 I FT:9
TWf!F FCk;?}NS Or SC''112T 29,rrAVIS-1-'71 AKl:UI.ILANs; 19!11,
1R..IA CII C,UNTC.490.1N'1Cf:CESCR13Si AS,FO_LOA_;
COVDTFL1E+JT LOTS E AFI)
ETCFI THE'MITE[STJCTfl
Tr14T I OE-041�3• CCAERNFl�71T LOT 9 Ll1AC.CI1THiTn.Y CF 7HT.
NCrT IER v)JARTM CF 3SJ1HEACT 5144(HJ R R.O.a2 A Erl9Cr4.
CAFOR4T 1'111 WITCH LYAS W!.'tle!EY TFT STATE CF■L3'TNETR1
TO Fri.CCLNIY OY 14S"I(It1Lf Ai Tat:miTI)IHTR GLfl,Rtrea
NLFJ3CT 5531IS16;
rxry.F1 IIIE'MIRE' (SfilI1)R' :
Alco
G;,'NDC`SNZN-LOT 101
FYi?'1'911 '.1191)x{:0Jr.K]RAR:
41SO
UC'F_FTWENT LOT ll;.
C4TE T THAT ro3nc 2 CFIICr10'0 ERIC COUNTY FOR 111 A,O
P;i1:F`F14''u' 1:11.0( LTPVEC UI&RI?RECrr:CcIG Ni UEE' 599111;
ANG Ei1L�FT TJ Ct:a:?1591 CO.1•41fG A7 1HF tifY 1119 t.N!Lt:
• PJRPC_L5 HY••CEEO A[OPOEC T(ltiliR.RECCRGSIT riL41EEA SSYE1;4;
.SNL E:.9T111 THAT L"61CI mit/447F NT 11,E STA:t OF 1M514TIti1CN
FIRS AtO'_a.7'i 'HI CC/JLYSSI iY,.XSiliTiL:,J AFT Fi,'UcI91-
rla-CT4429O AT T4 VJJflI9i5T CO(?). CF 514FS AORTHM: 1 Et TI II;
KV X rIFY111I.Yt i 73 LA;T 1LTLG TIT_9CSr LAX Cf SNR
TIATelliVEST CR AFTER A U1::,ARd r.(7111111 TET 1: .PENCE 31111
• pa-50r EAST FAR4:ILL!JIM AND SIN Fa? .10.1111 17'1H1 Nan'I{or c4:,1 lIE4.T ICI TI A CISTANCC CF.TO.CC FEET TO THE 1110E;".PONT :MI.i,ie TNY(!LCH111$IFI;-'J711CITHH 990''31•EAST
FTAALL All),SAFJ NORTH tat,. JN:CLc 1191'" II{PI Y 91).11
O=Vali Ll FS Cf FrAZTF4LI([99W S7IIJTH;AEF A(:STAHCE(IT 1131t1
FETA 1 TTIE _,{Ilii;9r21-4<C Ear S 451mCL,,^,F It2.33 FEET"O
11)TI 141,111 OF 4 NpY-T4HC,LN1 QJNt CCYiCd4E TJ PE
5}JTIEAST FIAYYY 4 RAINS JF'4 XL:it ma, Ftictia
...631 roll.,T t1(wAE 4:12,1,1 541(CxR11 d f€STANCT CF 1C-. ;CET
T'lutlnli;a A QF1mAL MOLE SF 430470'(TTTE pats.CLMTER 9EA55
EOLITH C3+72'20"I:A ; 11.1143:CC1,El 41151'9 •A1:gT A LT-)Ata
_ 0=5307 FEET;1FENCE SA:T-1.318}'O}'NEST A CIST.VILE CF 5101
MI'1; 119:1^;'1E111111 N»xs•;IH''41ST A 0$TANCE'8F 3"1{.49 FT_5I 1
!RE EASTTILY INERT Cr NAY 1111E C`L`5'ST.RE I .111tEASiT; THENCE
199TH 1741:7.14e WEST ALCTIC 51.11 EASTCFLY 912:1T Cl'HAY IRE A
LI5TAI4--CC 1a7.9E TFFT; TH.:MX NrxiY- CI 1,111 1I I l{GFL 513
EASTERLY 51 41 CF IFAY Li4C I C_T0.4(SI -:FAT.Hri 1'141 L ne
TRUE r'TCT CF EL11441.114r,•
T+IAT FOMIVE4.CF 1HE NCR.THECST OJAJIT7i Cf Th 3911THIAST
WARIER "INC RCC 1E?Y r Pr FEITTHEFLY MAFCY IF
ac Itx4r .Itu:K R'&P:4;)A)?L.xILAIFIN.Au.''33YETEC T4 Hit)
C(DFIT1 E'1'1.51 AFL:
Prepared by: Denise Scherer
After recording return to: Rita Drinkwater
SBA Network Services, LLC
8051 Congress Avenue
Boca Raton, FL 33487
Ph: 800-487-7483 ext. 7872
Parcel ID: 2921059069
FIRST AMENDMENT TO SITE AGREEMENT
THIS FIRST AMENDMENT TO SITE AGREEMENT ("First Amendment") is
executed this Vr-L'1. day of '5� }� , 2023 ("Effective Date") by and between
CITY OF AUBURN (WA), a Washington municipal corporation, having an address at
25 W Main ST, Auburn, WA 98001-4916 ("Owner") and SBA 2012 TC ASSETS,LLC, a
Delaware limited liability company, having a principal office located at 8051 Congress
Avenue, Boca Raton, FL 33487-1307 (hereinafter referred to as "SBA").
WHEREAS, Owner and Sprint Spectrum L.P.,a Delaware limited partnership, entered
into that certain Site Agreement, dated May 9, 2006, as evidenced by that certain
Memorandum of PCS Site Agreement dated May 9, 2006, and recorded June 16, 2006 as
Instrument #20060616002691, as amended and assigned from time to time (collectively,
"Agreement"), and ultimately assigned to SBA, f/k/a TowerCo Assets LLC, a Delaware
limited liability company, successor by merger to Tower Entity 2, LLC, a Delaware limited
liability company, pursuant to that certain Assignment and Assumption of Lease dated
September 23, 2008 and recorded October 22, 2008 as Instrument#20081022000413; said
recordings of the Recorder's Office of King County,Washington,for SBA's use of a portion
of the real property ("Site") located at 3030 R. Street, Auburn, WA 98002 ("Property"),
being more particularly described in the attached Exhibit"A"; and
WHEREAS, Owner and SBA desire and intend to amend and supplement the
Agreement as provided herein.
00603611-v8
1
WA48164-A/Auburn Game Farm
NOW,THEREFORE,for good and valuable consideration,the receipt and sufficiency
of which is hereby acknowledged, the parties hereto covenant, agree and bind themselves to
the following modifications to the Agreement:
1. Section 2. Term, of the Agreement is hereby amended to read as follows:
The Agreement will be automatically renewed for four(4)additional successive
terms of five (5)years (each a"Renewal Term"), unless SBA notifies Owner of
its intention not to renew the Agreement not less than ninety (90) days prior to
the expiration of any Renewal Term. Unless SBA so notifies Owner, the first of
the above Renewal Terms shall commence on June 1, 2026 upon the expiration
of the current term on May 31, 2026.
2. Subsection(a)of Section 3. "Rent"of the Agreement is hereby amended to read
as follows:
Owner acknowledges receipt of the one-time aggregate payment of $100.00,
which is the entire rent due for the period from the Lease Commencement Date
until the Rent Commencement Date. The Rent Commencement Date is defined
as the earliest to occur of the following: (a) the first day of the month that is 60
days after the issuance of the Sprint building permit, or (b) the first day of the
month that is 60 days after the date Sprint commences construction of the
Antenna Facilities at the Site. Starting on the Rent Commencement Date and
on the Pt day of every month thereafter, Sprint will pay rent in advance in equal
monthly installments of$3,000 ("Rent"), until increased as set forth herein. In
addition to Rent, SBA shall pay to Owner the statutory leasehold excise tax per
RCW Chapter 82.29A, which shall be paid with each Rent payment.
Notwithstanding anything contained in this Section, Sprint's obligation to pay
Rent is contingent upon Sprint's receipt of a W-9 form setting forth the tax
identification number of Owner or of the person or entity to whom Rent checks
are to be made payable as directed in writing by Owner.
3. Section 3(b) of the Agreement is hereby amended to read as follows:
The Rent shall increase annually over the Rent payable the preceding year in
proportion to the increase of the "All terms" 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-Tacoma-Bellevue
Metropolitan Area (the "CPI"). The first adjustment shall be based on the
amount, if any, by which the CPI 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 12th month of the lease term has increased over the
CPI for the 12th month of the proceeding 12-month period. It shall be the
responsibility of the Owner to track the CPI and notify the Sprint of increases or
reduction in the Rent. If at any time the CPI ceases to incorporate a significant
number of items, if a substantial change is made in the method of establishing
00603611-v8 2
WA48164-A/Auburn Game Farm
the CPI, or if issuance of the CPI shall be discontinued , then the Owner and
Sprint 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, than the Owner
shall select the index closet to the CPI. In either case,the substitute index chosen
shall result in increases in Rent similar to those that has been, or would have
been, generated but the CPI.
4. The Agreement is hereby amended to include a new subsection (d), "Revenue
Share" in Section 3 as follows:
Effective upon full execution of this Amendment, in addition to the Rent Owner
shall receive an additional fifteen percent (15%) of the annual gross revenue
("Revenue Share") generated from all existing and future "Sublessees",
including but not limited to, PCS providers such as AT&T, Verizon, T-Mobile,
and Dish using the Site. All Revenue Share contained herein shall be paid
annually with Owner's July rent check for the previous twelve (12)month cycle
(e.g. June 1 —May 31) in arrears upon Lessee's receipt of rental payment from
its Sublessees. SBA shall provide Owner with a summary report listing the
Sublessees on the tower and each Sublessee's annual rent with Owner's rent
check. Revenue Share paid to Owner shall be inclusive of and not require
additional payment of leasehold excise tax
Any amounts owed or due and payable to Owner under this subsection shall
survive the expiration or earlier termination of this Agreement.
5. Section 6. "Notices", of the Agreement is hereby amended to read as follows:
If to Owner: City of Auburn (WA)
25 W Main St
Auburn, WA 98001
If to SBA: SBA 2012 TC Assets,LLC
Attn: Site Administration
8051 Congress Avenue
Boca Raton, FL 33487-1307
Re: WA48164-A/Auburn Game Farm
6. Subsection (b) of Section 9. "Interference" of the Agreement is hereby
amended to read as follows:
Notwithstanding the foregoing, Owner shall have the right to install additional
equipment for government and public safety purposes(including,but not limited
to police, fire, and ambulance services) at or near the Site that might interfere
00603611-v8 3
WA48164-AJAuburn Game Farm
with Sprint's Antenna Facilities. Both Owner and SBA will cooperate in good
faith to design or modify their own systems at their own expense to eliminate
interference or reduce interference to reasonably acceptable levels ("Eliminate
Interference"). If the parties cannot Eliminate Interference: (i) Owner agrees to
use good faith efforts to lease to SBA a nearby site that is owned by Owner(an
"Alternate Site") under the same terms and conditions here, or(ii) if the parties
cannot agree upon an Alternate Site, Owner shall have the right to terminate this
Agreement upon ninety (90) days prior written notice to SBA. If SBA must
relocate its Antenna Facilities, Owner agrees to allow SBA to install temporary
Antenna Facilities at an Alternate Site to prevent an interruption in SBA's
service during the relocation process. Upon thirty (30) days prior written notice
from Owner, SBA shall allow Owner to access and use any existing or new
conduit on the tower controlled by SBA.
7. The Agreement is hereby amended to include a new Section 21. "Right of First
Refusal"to read as follows:
If at any time during the term of the Agreement, Owner receives from any
company or its affiliates that either (a) is engaged in the business of owning,
operating, or maintaining wireless communications facilities, or (b) has an
interest as a landlord, tenant, or in any other capacity in any wireless
communications ground lease or easement a bona fide written offer to sell,
assign,convey,lease or otherwise transfer the Site or the Property,or any portion
thereof, or create any interest in the current or future Rent, which Owner desire
to accept (the "Offer"), Owner shall first give SBA written notice (including a
copy of the proposed contract) of such Offer prior to becoming obligated under
such Offer, with such notice giving SBA the right to acquire the interest
described in the Offer on the terms set forth in the Offer. SBA shall have a period
of thirty (30) days after receipt of Owner's notice and terms to exercise SBA's
right of first refusal by notifying Owner in writing. If SBA has not exercised its
right of first refusal in writing to Owner within such thirty (30) day period, the
right of first refusal will be deemed rejected by SBA and Owner will be
unrestrained to accept the Offer.
8. Upon full execution of this First Amendment, SBA shall pay to Owner a one-
time payment of Fifteen Thousand and 00/100 Dollars ($15,000.00).
9. Capitalized terms not defined in this First Amendment will have the meaning
ascribed to such terms in the Agreement.
10. This First Amendment will be governed by and construed and enforced in
accordance with the laws of the state in which the Property is located without
regard to principles of conflicts of law.
00603611-v8
4
WA48164-A/Auburn Game Farm
11. Except as specifically set forth in this First Amendment, the Agreement is
otherwise unmodified and remains in full force and effect and is hereby ratified
and reaffirmed. In the event of any inconsistencies between the Agreement and
this First Amendment,the terms of this First Amendment shall take precedence.
12. The legal description in Exhibit A to the Agreement is hereby deleted in its
entirety and replaced with the legal description attached to this Amendment as
Exhibit 1.SBA may replace and substitute(at SBA's sole cost and expense)such
exhibit with an accurate survey and legal descriptions of the Site and re-record
this First Amendment upon obtaining Owner's written consent, which consent
shall not be unreasonably withheld, conditioned, or delayed. Following such re-
recording, the descriptions of the Site described therein shall serve as the
descriptions for same for all purposes under the Agreement.
13. Owner represents and warrants to SBA that Owner is the sole owner in fee
simple title to the Property and Owner's interest under the Agreement and that
consent or approval of no other person or body, other than the Auburn City
Council is necessary for Owner to enter into this First Amendment.
14. This First Amendment may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall constitute
one and the same First Amendment.
15. SBA shall have the right to record this First Amendment.
[The remainder of this page is intentionally left blank. Signatures to follow.]
00603611-v8 5
WA48164-A/Auburn Game Farm
IN WITNESS WHEREOF,the parties have executed this First Amendment as of
the day and year first above written.
WITNESSES: OWNER:
City of Auburn (WA), a Washington
municipal corporation
By: / By: 1. • .6.1/4 _`ha
Kendr .meaty,- '1 Attorney
Nancy Bac ii� ayor
a -
STATE OF WASHINGTON
COUNTY OF \.rC
On this K71_1.%_=', day o , 2023, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally
appeared�,rvcx_kc � as N- -'�q,_1/4.Q of
the City of Auburn (WA), a Washington municipal corporation, to me known to be the
individual described in and who executed the foregoing instrument and acknowledged to me
that she signed and sealed this said instrument as her free and voluntary act and deed for the
use and purposes therein mentioned, and on oath stated that he/she is authorized to execute
the said instrument.
Given under my hand and official seal this `1,1 -day -••=,.\\..AN, , 2023.
Notary Public
`%%%%%%%%% My Commission Expires Z -'�/Oc,Jc1—pa.k
tr
(NO ��
"NW>
41.°1•1 4-09' 2.ti..
' OF Wlk- rte
00603611-v8
6
WA48164-A/Auburn Game Farm
WITNESSES: SBA:
SBA 2012 TC Assets,LLC, a Delaware
limited liability company
Signature: ack sacA.
BY: 4119A
Print Name: G 4-4.treA_ Joshua,` • n": ' xecutive
Vice P - de .nd General Counsel
Signature:
Print Name: a 'iv a 4
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me by means of [X] physical
presence or[] online notarization,this 2( day of f Uhf ,2023, by Joshua Koenig,
Executive Vice President and General Counsel of SBA 2012 TC Assets, LLC, a Delaware
limited liability company, on behalf of the company, who is personally known to me and did
not take an oath.
' TIFFANY N.GONSALVES NO
:.F,•• ary PU 1C
=•: :*1 Commission#GG 923651 My Commissi xpires 11 12,3
Expires November 7,2023
(NOTARY SEAL)
00603611-v8
7
WA48164-A/Auburn Game Farm
EXHIBIT "1"
Legal description of the Property described as New Lot 2 in record of survey under
recording numbers 20051019900001
NEW LOT 2 DESCRIPTION
;JINN[Or CC 1L17J11(1:0)
TH'.*E INT OF SCCIl N 29,TO+xVS-1=.YI AciTT1l:lulus S 1AST,
■1?.:14;KISS COONITf.471:9-1).):11014.DESERE D AS'.O.LO'AE;
OC LTItt ENIT LOFS f SIu t;
ETCS_FF 111E Milt
111.SD
THAT PCA7Ct4 OF.CUTE1311141O4T LOT 9 LYING-NORTHERLY CF Thr
NC!<PICz',Y KA301,1 OF$7J1HEA5T STL^JC RYF?Roo£.tr£Jam.
FAUin3JT 14 At1CT AM e,,VAVIUT or TFL 5.4'E CF•L54NJC-1LYJ
TO ISCi4 C:OLN 1.4 171 ITISTIEUICtif 14117.147111 INTR IFc METE(.
N1:413E?5S13SIA;
CZC*PI IIIc Al-lit(srJF-X)
ALSO
GL+LitS rir LOT 101
Frci,PT Till 'MATT{zTTJG►)11 ,x:
41ST)
r.E'F_TTIMENT LOT 11;
CIFC=T 11!IT IItiifCA CEYI4E71:O.TO NNE COUNTY FOR ROA)
p;IFF1l1 NT I:ETl1 Ft-WAVER U1;1FR RCGGRCG1 HI UEE? SEUOT;
AHE EXCEPT TJ16:3T 11014 C04.4i T TO RTC Orr FCIPPLOT'
PJHILSS E..1;;-CEED Fq0PLED titilrR.NEC^RCA90 T4L'WEE 5StiE1)4;
SHL G1%..F'i t4A T TJnl1 lit IAJA.0 RY 111:-TATE l IdAcHn&1CN
PARKS MICCCHWSSAPI.a:Sa7EIL;1 AS FCLLCIN}.
f3TCJVAIRC AT?HE SITUIHHF"ST CCFL tF SAE1 tO THVE 1 t71UAIII5;
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41011-141'0T53-EAST 17TC hr_MOST Lt£CF SLIT
tJIFT1I41475.4 C.Ar1FR A HPTSAA'a PT 1:41i11 Lt t; r+,LNCE TOAT11
31'31'EAST��FARLL LL MITI AHD SO FEET SOUTH OF TIT 440-4411AC Cr OV) .)EST ITT T1 A OtiTA)ICC CF.30.51 FEET TO 11£TRUE
PONT-F l'trPI t41` +ISIGCMTIA1it,''yl)L11I'N0')T 1 EAST
P4=ALLF1 ATZIr SPIT tritiH 1.-1? ANO AI;IW.G RR'U1:JHtn4Y nIr.1T
CF MAY UNE OF FIJTYNALC EF14T IIJTHEASF A(T&TAV,E Sl+5.51T:i
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.:12w4._iR61v^+:x111.5 ALiTT SAD CURT{A r1 TTA.YC Cr 7f-.'•;Cf T
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1151; 5-11.^.1.14,04111 X1144';71''AEFT A DT.irAKE SCF:510.49 FEE'.r T;
IliL LAST'Sd_Y SlGTCr OF MY UNE OF'R"SL?F=_S0.ITITCly1;TITAFX
U1T11l SAT`ZI549.KIFT ALCT1C SAL)EASTERLY 1ST-IT CF NAY LINE A
DISTAFFS,CF 17.111 FFCT; 1155(£NI141,1 Al tlSY"LA1I A&TEc_MJ
EASTERLY RI1WT CL 4AA LINE 1 0S'A5C£.J- IS TIC
T"i:IE PORT CF EETN4CIC.
TIAT P7in:4;Cf 1St NCAPiSEST 0.1.TAT11i CE TI-):S.JTIJEAST
ISIAT.ICR L`.14G NCP*:-1E F.Y SF T-1E"1151114Et7.1 MASON ET
SL(r I1A.4r£1151111&Atli ftUA)IXIL 5Y.IN.A5t CM...LIM Ti 11)8)
CUJ'ITT ES OFFS PFOORCE;1 LI+ILEA e•ZO,L11141 14JI$'I?LISA.*,
AI DJ
THAT FpIICH OF THE F4CRPIESST 1L1421ER OF THE SOUThtAES1
1%lia4 R IT 1.1711 NGRPICT_Y C'TRE 14011115RLY MARC-44 OF
51011.1435 nnITS:3ti511 R0A0 C1+!YITIY4,EASE4104T F0?1p:ICl•*A5
CR1511E0 0Y;TME STATE GF'A'AElleis1TA I.1 Ki10 1.11411 R'=
tJSIRLt1Ev'T RECORDED LASER HF.Cn10HA0 MI:u1111 S£111w1U;
(KIN,:TIE Aim 1(571.14.4(1 REITIY
41311
11tAG1"•',.I?f'FJ?NAL?L(1.19115 NO.I?i5 FLAT 1Ft7SCr FECORDED IN
"'.1 NtTi,tve iF TSAII5 AT'4Tt5 Al 11RG1104 157.WIDER RELSRCNC
AYay1:EA'55111$1511i3,151`111104 01 Tann 5111L4;11,1Al11141171
00603611-v8 8
WA48164-A/Auburn Game Farm
Prepared by: Denise Scherer
After recording return to: Rita Drinkwater
SBA Network Services, LLC
8051 Congress Avenue
Boca Raton, FL 33487
Ph: 800-487-7483 ext. 7872
Parcel ID: 2921059069
FIRST AMENDMENT TO SITE AGREEMENT
THIS FIRST AMENDMENT TO SITE AGREEMENT ("First Amendment") is
executed this \'1,'e= day of y , 2023 ("Effective Date") by and between
CITY OF AUBURN (WA), a Washington municipal corporation, having an address at
25 W Main ST,Auburn, WA 98001-4916 ("Owner") and SBA 2012 TC ASSETS,LLC, a
Delaware limited liability company, having a principal office located at 8051 Congress
Avenue, Boca Raton,FL 33487-1307 (hereinafter referred to as "SBA").
WHEREAS,Owner and Sprint Spectrum L.P.,a Delaware limited partnership,entered
into that certain Site Agreement, dated May 9, 2006, as evidenced by that certain
Memorandum of PCS Site Agreement dated May 9, 2006, and recorded June 16, 2006 as
Instrument #20060616002691, as amended and assigned from time to time (collectively,
"Agreement"), and ultimately assigned to SBA, f/k/a TowerCo Assets LLC, a Delaware
limited liability company, successor by merger to Tower Entity 2, LLC, a Delaware limited
liability company, pursuant to that certain Assignment and Assumption of Lease dated
September 23, 2008 and recorded October 22, 2008 as Instrument#20081022000413; said
recordings of the Recorder's Office of King County,Washington,for SBA's use of a portion
of the real property ("Site") located at 3030 R. Street, Auburn, WA 98002 ("Property"),
being more particularly described in the attached Exhibit"A"; and
WHEREAS, Owner and SBA desire and intend to amend and supplement the
Agreement as provided herein.
00603611-v8
1
WA48164-A/Auburn Game Farm
NOW,THEREFORE,for good and valuable consideration,the receipt and sufficiency
of which is hereby acknowledged, the parties hereto covenant, agree and bind themselves to
the following modifications to the Agreement:
1. Section 2. Term, of the Agreement is hereby amended to read as follows:
The Agreement will be automatically renewed for four(4)additional successive
terms of five (5)years (each a"Renewal Term"), unless SBA notifies Owner of
its intention not to renew the Agreement not less than ninety (90) days prior to
the expiration of any Renewal Term. Unless SBA so notifies Owner,the first of
the above Renewal Terms shall commence on June 1, 2026 upon the expiration
of the current term on May 31, 2026.
2. Subsection(a)of Section 3."Rent"of the Agreement is hereby amended to read
as follows:
Owner acknowledges receipt of the one-time aggregate payment of $100.00,
which is the entire rent due for the period from the Lease Commencement Date
until the Rent Commencement Date. The Rent Commencement Date is defined
as the earliest to occur of the following: (a) the first day of the month that is 60
days after the issuance of the Sprint building permit, or (b) the first day of the
month that is 60 days after the date Sprint commences construction of the
Antenna Facilities at the Site. Starting on the Rent Commencement Date and
on the Pt day of every month thereafter, Sprint will pay rent in advance in equal
monthly installments of$3,000 ("Rent"), until increased as set forth herein. In
addition to Rent, SBA shall pay to Owner the statutory leasehold excise tax per
RCW Chapter 82.29A, which shall be paid with each Rent payment.
Notwithstanding anything contained in this Section, Sprint's obligation to pay
Rent is contingent upon Sprint's receipt of a W-9 form setting forth the tax
identification number of Owner or of the person or entity to whom Rent checks
are to be made payable as directed in writing by Owner.
3. Section 3(b) of the Agreement is hereby amended to read as follows:
The Rent shall increase annually over the Rent payable the preceding year in
proportion to the increase of the "All terms" 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-Tacoma-Bellevue
Metropolitan Area (the "CPI"). The first adjustment shall be based on the
amount, if any, by which the CPI 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 12th month of the lease term has increased over the
CPI for the 12th month of the proceeding 12-month period. It shall be the
responsibility of the Owner to track the CPI and notify the Sprint of increases or
reduction in the Rent. If at any time the CPI ceases to incorporate a significant
number of items, if a substantial change is made in the method of establishing
00603611-v8 2
WA48164-A/Auburn Game Farm
the CPI, or if issuance of the CPI shall be discontinued , then the Owner and
Sprint 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, than the Owner
shall select the index closet to the CPI.In either case,the substitute index chosen
shall result in increases in Rent similar to those that has been, or would have
been, generated but the CPI.
4. The Agreement is hereby amended to include a new subsection (d), "Revenue
Share" in Section 3 as follows:
Effective upon full execution of this Amendment, in addition to the Rent Owner
shall receive an additional fifteen percent (15%) of the annual gross revenue
("Revenue Share") generated from all existing and future "Sublessees",
including but not limited to, PCS providers such as AT&T, Verizon, T-Mobile,
and Dish using the Site. All Revenue Share contained herein shall be paid
annually with Owner's July rent check for the previous twelve(12)month cycle
(e.g. June 1 —May 31) in arrears upon Lessee's receipt of rental payment from
its Sublessees. SBA shall provide Owner with a summary report listing the
Sublessees on the tower and each Sublessee's annual rent with Owner's rent
check. Revenue Share paid to Owner shall be inclusive of and not require
additional payment of leasehold excise tax
Any amounts owed or due and payable to Owner under this subsection shall
survive the expiration or earlier termination of this Agreement.
5. Section 6. "Notices", of the Agreement is hereby amended to read as follows:
If to Owner: City of Auburn(WA)
25 W Main St
Auburn, WA 98001
If to SBA: SBA 2012 TC Assets, LLC
Attn: Site Administration
8051 Congress Avenue
Boca Raton, FL 33487-1307
Re: WA48164-A/Auburn Game Farm
6. Subsection (b) of Section 9. "Interference" of the Agreement is hereby
amended to read as follows:
Notwithstanding the foregoing, Owner shall have the right to install additional
equipment for government and public safety purposes(including,but not limited
to police, fire, and ambulance services) at or near the Site that might interfere
00603611-v8 3
WA48164-A/Auburn Game Farm
with Sprint's Antenna Facilities. Both Owner and SBA will cooperate in good
faith to design or modify their own systems at their own expense to eliminate
interference or reduce interference to reasonably acceptable levels ("Eliminate
Interference"). If the parties cannot Eliminate Interference: (i) Owner agrees to
use good faith efforts to lease to SBA a nearby site that is owned by Owner(an
"Alternate Site") under the same terms and conditions here, or (ii) if the parties
cannot agree upon an Alternate Site, Owner shall have the right to terminate this
Agreement upon ninety (90) days prior written notice to SBA. If SBA must
relocate its Antenna Facilities, Owner agrees to allow SBA to install temporary
Antenna Facilities at an Alternate Site to prevent an interruption in SBA's
service during the relocation process. Upon thirty (30) days prior written notice
from Owner, SBA shall allow Owner to access and use any existing or new
conduit on the tower controlled by SBA.
7. The Agreement is hereby amended to include a new Section 21. "Right of First
Refusal"to read as follows:
If at any time during the term of the Agreement, Owner receives from any
company or its affiliates that either (a) is engaged in the business of owning,
operating, or maintaining wireless communications facilities, or (b) has an
interest as a landlord, tenant, or in any other capacity in any wireless
communications ground lease or easement a bona fide written offer to sell,
assign,convey,lease or otherwise transfer the Site or the Property,or any portion
thereof, or create any interest in the current or future Rent, which Owner desire
to accept (the "Offer"), Owner shall first give SBA written notice (including a
copy of the proposed contract) of such Offer prior to becoming obligated under
such Offer, with such notice giving SBA the right to acquire the interest
described in the Offer on the terms set forth in the Offer. SBA shall have a period
of thirty (30) days after receipt of Owner's notice and terms to exercise SBA's
right of first refusal by notifying Owner in writing. If SBA has not exercised its
right of first refusal in writing to Owner within such thirty (30) day period, the
right of first refusal will be deemed rejected by SBA and Owner will be
unrestrained to accept the Offer.
8. Upon full execution of this First Amendment, SBA shall pay to Owner a one-
time payment of Fifteen Thousand and 00/100 Dollars ($15,000.00).
9. Capitalized terms not defined in this First Amendment will have the meaning
ascribed to such terms in the Agreement.
10. This First Amendment will be governed by and construed and enforced in
accordance with the laws of the state in which the Property is located without
regard to principles of conflicts of law.
00603611-v8 4
WA48164-A/Auburn Game Farm
•
11. Except as specifically set forth in this First Amendment, the Agreement is
otherwise unmodified and remains in full force and effect and is hereby ratified
and reaffirmed. In the event of any inconsistencies between the Agreement and
this First Amendment,the terms of this First Amendment shall take precedence.
12. The legal description in Exhibit A to the Agreement is hereby deleted in its
entirety and replaced with the legal description attached to this Amendment as
Exhibit 1. SBA may replace and substitute(at SBA's sole cost and expense)such
exhibit with an accurate survey and legal descriptions of the Site and re-record
this First Amendment upon obtaining Owner's written consent, which consent
shall not be unreasonably withheld, conditioned, or delayed. Following such re-
recording, the descriptions of the Site described therein shall serve as the
descriptions for same for all purposes under the Agreement.
13. Owner represents and warrants to SBA that Owner is the sole owner in fee
simple title to the Property and Owner's interest under the Agreement and that
consent or approval of no other person or body, other than the Auburn City
Council is necessary for Owner to enter into this First Amendment.
14. This First Amendment may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall constitute
one and the same First Amendment.
15. SBA shall have the right to record this First Amendment.
[The remainder of this page is intentionally left blank. Signatures to follow.]
00603611-v8 5
WA48164-A/Auburn Game Farm
IN WITNESS WHEREOF,the parties have executed this First Amendment as of
the day and year first above written.
WITNESSES: OWNER:
City of Auburn (WA), a Washington
municipal corporation
1/4 aI ,
By: A a2j. By: je...61.4,4 ,- •,,,,I
Kendra Co–Me-au, City Attorney Nancy Bac lt, ayor
STATE OF WASHINGTON
COUNTY OF 1k,A-Nr,_\
On this V1''`---day of K* , , 2023, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally
appeared 'C1c,3eNu_ c„cNL ‘,..5 as �'�y,,,vt,\,. of
the City of Auburn (WA), a Washington municipal corporation, to me known to be the
individual described in and who executed the foregoing instrument and acknowledged to me
that she signed and sealed this said instrument as her free and voluntary act and deed for the
use and purposes therein mentioned, and on oath stated that he/she is authorized to execute
the said instrument.
Given under my hand and official seal this \\ day of-�,„_\ , 2023.
C�-
``‘`�‘NNN%1HN' Notary Public
G AMPe hit
X44 !���liMy Commission Expires ZA/< /�
pr:
/AR). • i(NOT ' Aote, 5
. Atsi.
i' tA� 4-04'•1•
00603611-v8 6
WA48164-A/Auburn Game Farm
WITNESSES: SBA:
SBA 2012 TC Assets, LLC, a Delaware
limited liability company
Signature: c..) c.c_crd
By: AA&
Print Name: Aryl c cr-pk— Joshu, oe , Executive
Vice _. i.- 1 and General Counsel
Signature: dr10 10
Print Name: 15V-I , y,, .,,, cS b
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me by means of [X] physical
presence or[] online notarization,this 21 day of 3u n& ,2023, by Joshua Koenig,
Executive Vice President and General Counsel of SBA 2012 TC Assets, LLC, a Delaware
limited liability company, on behalf of the company, who is personally known to me and did
not take an oath.
`�"'.'`' :. TIFFANY N.GONSALVES
�
.„ ;* Commission#GG 923651
II otary ublic)
"'' MyCommission Expires [1 (1 f 23
'••'.?;;�;,o?•� Expires November 7,2023
(NOTARY SEAL)
00603611-v8
7
WA48164-AJAuburn Game Farm
EXHIBIT "1"
Legal description of the Property described as New Lot 2 in record of survey under
recording numbers 20051019900001
NEW LOT 2 DESCRIPTION
;YL M CITY il' 1L11J'1 1071
TN'J1£POR NAS Or Ea-11N 25. 1,41.YS0.71 ttii1P,111771,",.51.4411,
eU„to KING CGitNTf.YA9fN:10,1.CiSITI AS:FOAMS:
C014147871 LOIN E}Nil r;
CFI PIE Wr1T-L 1SSTJCt1
MAO
THAT 11057041 OF CO•,ER114 4T 1.07 9 L111o0 YO'.Tti7T.Y
nGFniCR:•'115.43,711 CF.SttJ11.1CN;T S1E7C Pi1F.R 75''42 5:[1£[[]075.
CA Iwr1JT r(1 MiffS IAN fi+_r,piep EY 114 Si55E OF RaS4IMTLM
TO Y.L46 C:OI:Ni1!NY 1%%111511117:15 12'1:pA-417 1N1FR 6CCT1ttt 3
NEWER 15313516;
'S If III}'M:1TE{Spiry)S'lt:
ALSO
01.W0SL.ZN1 LOT 100,
1.:0;11I 1111 N7.itT{..1:11,11:4)L1'4114:
4110.1
C2,1‘CI44ENT LOT 11C
LECUIT 714AT FSRnCJ GYILErtCI.TC'HNC 0001.715 FCR ROAD.
P:iki,tYC:LIS^LST FLEE N FP &it FECCSLY'SG NI:NEER:t5EHE7;
ANG EXCEPT TNT52P,1ICIi Cfri1F1TC TO INF UFY fog vAujr
FJHFOIFS Ef•CEEO PLOPE7EC 047FR NE,CCROSE$LWEE 584E174;
AHL tKL.41 thA.!"4'
.11154 1111f:RPp 9S T t 2TATE OF WA 41131CYi
PARES 5 Mit a_O*1F5I Cc1NUissrh.?Sioi-.i.J i,
13TC14411C AT rE YJJINtifST C045SR OF'a4I5 102THIIts1 LiJAMTt'.II;
61-1,0U.NESfILI:,�!�tJ'YS LASI FO.:MC 11FE MES[L4£OF SAID
Ii:rniwwst EVAATER A Hc11414O Pf 171715 SW: +2HCt 9411111
•
O31:31'EF,P.FARL.ILL MTI ANC NO FEET SCSJ11I OF TFE 74CEET11
'•"+'E qr eWra'EAT LII 11 A 01 ACC Cf.X.EC FEE/10 niE TRUE
PONTF.L'EE i4rif T r4CC C4KNMulN 51iJp.ee31''1 EAST
PA=ALL}I.AlED SAO N1:111N LN ?1111 71;5:770 111!. 11;11 r HIriT
O='IAA?LAE CF rIF..R'NJLC CRP&J)JTH,;ASr A(MANCE 04 113:1$:1
1121 rnnnE_,N17i;11r21'IL5 EAS'a'[1 1ANct Cr 152.22 FEET 70
norco{Y4MH.110 4 Np4-1m11a411.CURSE CCEGA'.E
57kJ114ZA5T TIAA1S A N4:1US of t :Lit FIX: f11EH13:
Di lY'1+.',0.CF2(WEE.410.10 5+10 CUIZCf A UETk4CF.CF JEI.T:;UT
rininli1.i A 0.YimAL N.vPLE SF.1104.39'(114E FANGS CENTER HEAPS
}1151754 C1'22.211-EA 1.i; 1EE447 :MON glt1'.711"A1;ST A LT TRAf.E
0,3347 FEET,. PEKE 1.10..,T.:1-34'95'01'IEST A CISTANL=Cf 51.01
1121; ININCf.NCi4111 11541 J'I 'REST A R.jrANCE'CF.45.43 FEE I TE
laLAST-7dS PJCki 0,PAY LIFE CF`II 5:TAM 2.0.1TiiEJTT; 11,C41C1
54:75151 11,11:454!1'NES ALONG SALT CAS'CEEL'S FFEIT OF NA?1154E A
DISTANCE Cr 1473E TFFT; h.2.HC{ 41559 97',k5 ii LA'1 14.110 5$13
CdETErI'.Y 61:21I OF*AV UK A G5'kNtf} i!.,yfL 1'r'CI
TRJE PO4:1 7'EEENHFIC.
NE11
5.151 P`71112EE OP TI•E NCROiMEST 0JAF77i G TEE 31J01EAST
WARM,1:1112 NC477E1ER'IT,r TIE 1#O1Tt1EFLY MAFCF4 Cf
.JNJ ItA.4t:i.111I:K WAR NON?Lx1LISKIN.A5 0741E1TX TO 11 1115
NO.111Y E",'DiTh RFStOPECI LNL'EH P_(31,17lic MJI IM_'fejt]+.*.
54_•33
T1AT C.ITICN O<THE NCRT•1EAST CU.S2IER OF THE SCUTIAAESf
MIAk Ir IT 21746 NGRr rzis!THE IKIR IK-FLY 51AFLs4 CF
I 1A A.".1 11'117K Ni‘SROI4 EFTME YI.EASTATTIT FU?144115 5N5
CRJ1i1E0 85 THE STATE OF WAS!Mural,:Ta Alis;exANts 11v
NSiii.ME3T PECCIIEE6 LILIES 11E1:01rO vi:1111411141:15111;1:
1'x.^.rv7 11C II MT ISui i ans5 .
ALS]
1"AGL G':.PAVOI LT 07.12054 1111.1?E.R RAT 1Eh7ECF PACO OED IH
2,;A'I AT".Ar,C3 N fRiC4'5F1 El,'JHL'ER 1REE.01CNG
by 4.1114'15;FS1S11?3.F?tM�09 Of A.2I1;Et:LI.1YF sattitp7arN
00603611-v8
8
WA48164-A/Auburn Game Farm