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HomeMy WebLinkAbout05-01-2006 ITEM VIII-B-4CITY OF� , AN WASHINGTON AGENDA BILL APPROVAL FORM Agenda Subject: Date: Resolution No. 4018 Aril 19, 2006 Department: Attachments: Budget Impact: Public Works Resolution No. 4018 $0 Administrative Recommendation: City Council adopt Resolution No. 4018. Background Summary: Resolution No. 4018 authorizes the Mayor to execute a lease agreement between the City and Clearwire LLC for placement of communication equipment on the Lakeland Hills water reservoir. The lease is for a term of 5 years with the option to renew for five additional 5 -year terms. Rent, payable to the Water Utility, is $12,000.00 per year with an annual increase in proportion to the increase in the Consumer Price Index, and twenty-five Clearwire base data service accounts for use by the City. W0501-4 A3.17 Reviewed by Council & Committees: Reviewed by Departments & Divisions: ❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&O ❑ Airport ❑ Finance ❑ Cemetery ❑ Mayor ❑ Hearing Examiner ❑ Municipal Serv. ❑ Finance ❑ Parks ❑ Human Services ❑ Planning & CD ❑ Fire ❑ Planning ❑ Park Board EPublic Works E Legal ❑ Police ❑ Planning Comm. ❑ Other E Public Works ❑ Human Resources Action: Committee Approval: ❑Yes []No Council Approval: ❑Yes [--]No Call for Public Hearing Referred to Until _/_/ Tabled Until _/_/ Councilmember: Wagner Staff: Dowd Meeting Date: May 1, 2006 Item Number: VIII.B.4 AUBURN *MORE THAN YOU IMAGINED RESOLUTION NO. 4018 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY AND CLEARWIRE LLC, FOR THE PURPOSE OF LEASING PROPERTY FOR COMMUNICATION EQUIPMENT THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, IN A REGULAR MEETING DULY ASSEMBLED, HEREBY RESOLVES as follows: Section 1. The Mayor and City Clerk of the City of Auburn are herewith authorized to execute a Lease Agreement between the City and Clearwire LLC, for the purpose of leasing space on the Lakeland Hills water reservoir, for communication equipment. A copy of said Agreement is attached hereto and denominated Exhibit "A" and incorporated herein.by this reference. Section 2. That the Mayor is authorized to implement such other administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. That this Resolution shall take effect and be in full force upon passage and signatures hereon. Resolution No. 4018 April 18, 2006 Page 1 Dated and Signed this day of , 2006. CITY OF AUBURN PETER B. LEWIS MAYOR ATTEST: Danielle E. Daskam, City Clerk APPROVED • •He City Attorney - Resolution No. 4018 April 18, 2006 Page 2 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, Clearwire LLC, a Nevada limited liability company, ("Tenant"). 1. Lease Agreement. Landlord hereby leases to Tenant the property generally described and depicted in Exhibit A, Memorandum of Lease, attached hereto and incorporated by reference ("Lease Area"), including space on Landlord's water tank located on the Property ("Water Tank Area"), said lease area being a portion of the real property legally described in Exhibit A ("Property"). The Lease shall be nonexclusive and shall not preclude 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. 2. Term. This Lease shall commence on the date of full execution hereof ("Commencement Date"), and run for a period of five (5) years terminating at midnight on the fifth anniversary of the Commencement Date ("Initial Term"). 3. Tenant's Use of the Lease Area - Antenna Facilities. (a) Tenant's use of the Lease Area and Property shall be strictly limited to those uses set forth in this Section 3. 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. Tenant may place its ground based telecommunications equipment only within the portion of the Lease Area identified as the "Compound" on Exhibit A. Tenant may install antennas within the Water Tank Area. (b) 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, 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 and operation 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. (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. Tenant may install and maintain landscape plantings within the Lease Area. Tenant shall replace any existing landscape plantings damaged during the installation or operation of Tenant's Antenna Facilities. Upon termination or expiration of this Lease, the Lease Area 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 remove any and all telecommunications equipment and appurtenances installed by Metricom, Inc. on the Water Tank or Property. Rather than removing Metricom, Inc. equipment and appurtenances, Tenant may choose to utilize all or a portion of the equipment and appurtenances if it is in good and safe working order. Any Metricom, Inc. equipment removed by Tenant is to be disposed of legally at Tenant's expense. (e) In addition to using the Lease Area, Tenant may utilize the Property to install and use underground conduits running from the Compound in a generally straight line to the base of the Water Tank and then extend up the side of the Water Tank to the Antenna Facilities. (f) 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. (g) Prior to installation of equipment, Tenant shall submit for Landlord review and approval, which approval shall not be unreasonably withheld or delayed, an electrical and grounding connection plan that assures no interference with the Water Tank cathodic protection system. The plan shall include a 3" minimum diameter common use conduit enclosure for cables from the ground level to top of tank. This conduit may be utilized by other telecommunication providers until such time as it is filled to capacity, at which time new providers will need to pay for upsizing. Upon Landlord approval of the plans, Tenant may proceed to install and operate the Antenna Facilities. 4. Rent. (a) Tenant shall pay Landlord, as rent, $12,000 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 13 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 12`h 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 Index for the 12th 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 CPI 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 for any reason (other than a default by Tenant) at a time other than on the anniversary of the Commencement Date, Rent shall be prorated as of the date of termination and all prepaid Rent shall be refunded to Tenant within sixty (60) days. (b) In addition to the monetary rent described in section 4 (a), Tenant shall provide Landlord with twenty-five (25) Clearwire base data service accounts, or equivalent, for Landlord use. Tenant shall cover any service charges for the accounts provided to Landlord under this Agreement for the duration of the Initial Term and any Renewal Terms. Landlord may require additional service accounts, each additional account requested by Landlord and provided by Tenant, shall reduce the annual rent by Twenty -Five Dollars ($25.00) per month. Landlord agrees to purchase from Tenant, at Tenant's cost, any communication hardware required to utilize the accounts provided by Tenant under this Agreement. 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. 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 party'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. Access. (a) Tenant shall have the right during the Initial Term and of this Lease and any Renewal Term for ingress and egress to the Property over the south fifteen (15) feet of Lot 6, Lakeland Hills Division Number 3, Extension, according to the plat thereof recorded in Volume 145 of Plats, pages 72 and 73, in King County Washington. (b) 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 per day for each day that Access is impeded or denied. Access to Landlord facilities beyond the Lease Area, including but not limited to the water reservoir site and the water reservoir, require 48 hours notice to the Water Division Supervisor of the City of Auburn Water Utility (phone: 253-931-3066). Access to Landlord facilities will only occur with Landlord supervision. Tenant agrees to reimburse Landlord for Landlord expenses attributed to supervising Tenant while accessing Landlord facilities. The hourly rate for Landlord supervision during City standard office hours will be $32.50 per hour in calendar year 2006. The hourly rate shall increase annually on January 1st over the hourly rate payable the preceding year by not less than three and one half percent (3.5%) or the CPI — Urban for the Seattle / Tacoma area whichever is the greater, unless a different hourly rate amount is negotiated. 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; (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 3 (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. 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 13 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 (ii) 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 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. 11. Indemnification. (a) Tenant shall defend, indemnify, and hold harmless the Landlord, its officers, officials, employees and volunteers from and against any and all claims, suits, actions, or liabilities for injury or death of any person, or for loss or damage to property, which arises out of Tenant's use of Premises, or from the conduct of Tenant's business, or from any activity, work or thing done, permitted, or suffered by Tenant in or about the Premises, except only such injury or damage as shall have been occasioned by the sole negligence of the Landlord. (b) Should a court of competent jurisdiction determine that this Lease is subject to RCW 4.24.115, 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. (c) The Tenant and the City waive all rights against each other, any of their Subcontractors, Sub -subcontractors, agents and employees, each of the other, for damages caused by fire or other perils to the extend covered by Builders Risk insurance or other property insurance obtained pursuant to the Insurance Requirements Section of this Lease or other property insurance applicable to the work. The policies shall provide such waivers by endorsement or otherwise. 12. Insurance. The Tenant shall procure and maintain for the duration of the Lease, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Tenant, its agents, representatives, or employees. (a) Minimum Scope of Insurance. Tenant shall obtain insurance of the types described below: (1) Automobile Liability insurance covering all owned, non -owned, hired, and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. (2) Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent tenants, products - completed operations, stop gap liability, and personal injury and advertising injury and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 11 85. There shall be no endorsement or modification of the Commercial General Liability insurance for liability arising from explosion, collapse, or underground property damage. The Landlord shall be named as an additional insured under the Tenant's Commercial General Liability insurance policy with respect to the work performed for the Landlord using ISO Additional Insured Endorsement CG 20 10 10 01 and Additional Insured -Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing equivalent coverage. (3) Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. (b) Minimum Amounts of Insurance. Tenant shall maintain the following insurance limits: (1) Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. (2) Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products - completed operations aggregate limit. (c) Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability, and Commercial General Liability insurance: (1) The Tenant's insurance coverage shall be primary insurance as respects the Landlord. Any insurance, self-insurance, or insurance pool coverage maintained by the Landlord shall be in excess of the Tenant's insurance and shall not contribute with it. (2) The Tenant's insurance shall be endorsed to state that coverage shall not be cancelled by either party except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Landlord. (d) Acceptability of Insurers. Insurance is .to be placed with insurers with a current A.M. Best rating of not less than A:VII. (e) Verification of Coverage. The Tenant shall furnish the Landlord with documentation of insurer's A.M. Best rating and with original certificates and a copy of amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Consultant before commencement of the work. (f) Subcontractors. The Tenant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractors. All coverages for subcontractors shall be subject to all of the same insurance requirements as stated herein for the Tenant. (g) No Limitation. Tenant's maintenance of insurance as required by the Lease shall not be construed to limit the liability of the Tenant to the coverage provided by such insurance, or otherwise limit the Landlord's recourse to any remedy available at law or in equity. 13. 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, certified 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. If to Tenant. to: Clearwire LLC Attn: Site Property Manager 5808 Lake Washington Blvd NE, Suite 300 Kirkland, WA 98033 Telephone: 425-216-7600 Fax: 425-216-7900 If to Landlord. to: Public Works Director City of Auburn 25 West Main St. Auburn, WA 98001 With a copy to: Clearwire LLC Attention: Legal Department 5808 Lake Washington Blvd NE, Suite 300 Kirkland, WA 98033 Telephone: 425-216-7600 Fax: 425-216-7900 With a copy to: City Attorney City of Auburn 25 West Main St. Auburn, WA 98001 14. Quiet Eniovment. Title and Authority. Landlord covenants and warrants to Tenant that (i) Landlord has full right, power and authority to execute this Lease; (ii) it has good and unencumbered title to the Property free and clear of any liens or mortgages, except those disclosed to Tenant and which will not interfere with Tenant's rights to or use of the Lease Area; and (iii) 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. 15. 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 15 shall survive the termination or expiration of this Lease. 16. Assignment and Subleasing (a) The Tenant may not sublease any portion of the Lease Area, or grant any rights to the Lease Area to any third parties except as specifically set for in this Lease. (b) All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their 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 successor -in - 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. (c) Additionally, 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 Tenant'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. 17. 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. 18. 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 (i) materially interfere with or affect Tenant's operation of its Antenna Facilities; or (ii) 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 furnish 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. (i) 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 leasing 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. 19. 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. 20. Liens. Except with respect to activities for which Landlord is responsible, Tenant shall pay as due all claims for work done on, and for services rendered or material furnished to, the Antenna Facility, and shall keep the Antenna Facility free from all liens. LANDLORD: City of Auburn By: Peter B. Lewis, Mayor Date: Tan ye� ID Number: TENANT: Clearwire LLC, a Nevada limited liability company By: Print Name: Its: Date: (acknowledgements to follow on next page) STATE OF ) 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 , of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Public Print Name residing at My commission expires (use this space for notary stamp/seal) STATE OF 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 , of , the limited liability company, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Public Print Name residing at My commission expires (use this space for notary stamp/seal) Exhibit A MEMORANDUM OF LEASE to the Site Lease Agreement executed on the day of , 2006, by and between the City of Auburn, as Landlord, and , as Tenant. (MOL to follow on next page) Return to: Re: Cell Site State: Washington County: King MEMORANDUM OF LEASE THIS MEMORANDUM OF 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 ("Tenant"). Landlord and Tenant entered into a certain Site Lease Agreement ("Lease") on the day of , 2005, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing are set forth in the Lease. 2. Landlord is leasing to Tenant a portion of the Property described in Exhibit 1 annexed hereto. 3. The initial term of the five (5) years commences on September 1, 2005. The Lease will automatically renew for five (5) separate consecutive periods of five (5) years each upon the same terms and conditions of the Lease, unless Tenant notifies Landlord in writing of Tenant's intention not to renew the Lease at least ninety (90) days prior to the expiration of the existing term. Unless earlier terminated, the Lease will expire on August 31, 2035. 4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions or provisions of the Lease, all of which are hereby ratified and affirmed. In the event of a conflict between the provisions of this Memorandum of Lease and the provisions of the Lease, the provisions of the Lease shall control. The Lease shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assigns, subject to the provisions of the Lease. IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first above written. LANDLORD: City of Auburn By: Peter B. Lewis Its: Mayor Date: Taxpayer ID Number: TENANT. By: Print Name: Its: Date: (acknowledgements to follow on next page) STATE OF ) 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 , of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Public Print Name residing at My commission expires (Use this space for notary stamp/seal) STATE OF 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 , of , the limited liability company, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Public Print Name residing at My commission expires Luse trns space for notary stamp/seal) f . F EXHIBIT 1 1. DESCRIPTION OF PROPERTY The Property is described and/or depicted as follows: THE SOUTH 175.00 FEET OF THE EAST 110.00 FEET OF THE 'VEST 1,393.00 FEET OF THE SOUTHEAST QUARTER OF SECTION 31, TOWNSHIP 21 NORTH, RANGE 5 EAST, W.M., CITY OF AUBURN, RECORDS OF KING COUNTY} WASHINGTON 2. DESCRIPTION OF LEASE AREA f t . 6 T WATER TANK AREA pprox y, PROPERTY 33' 7' �-- COMPOUNI) 33' Exhibit 1 - Description of Lease Area