HomeMy WebLinkAbout3649 RESOLUTION NO. 3 6 4 9
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 VOICESTREAM
PCS III CORPORATION, FOR THE PURPOSE OF
LEASING SPACE ON THE LAKELAND HILLS WATER
TOWER FOR COMMUNICATION EQUIPMENT
WHEREAS, the City of Auburn has facilities from which cellular and
telecommunication equipment could be attached; and
WHEREAS, Voicestream PCS III Corporation has sought use of such
facilities and has negotiated an agreement for use thereof with terms
acceptable to the City.
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 VoiceStream
PCS III Corporation, for the purpose of leasing space on the Lakeland Hills
water tower for communication equipment, in substantial conformity with the
agreement attached hereto, marked as Exhibit "I" and incorporated herein by
this reference.
Resolution No. 3649
November 7, 2003
Page 1
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.
upon passage and signatures hereon.
Dated and Signed this /z' day
That this Resolution shall take effect and be in full force
,2003.
ATTEST:
_UBURN
MAYOR
Da"hlelle E. Daskam,
City Clerk
Daniel B. Heid,
City Attorney
Resolution No. 3649
November 7, 2003
Page 2
Exhibit "I"
SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT("Lease") is by and between City of Auburn, ("Landlord") and
VoiceStream PCS III Corporation, a Delaware corporation (Tenant").
1. Lease A.qreement. t..,
(a) Landlord hereby leases to Tenant a portion of the real property legally described as follows: THE
SOUTH 175.00 FEET OF THE EAST 110.00 FEET OF THE WEST 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, (collectively referred to hereinafter as the
"Property"). The lease includes the right to operate a personal communications service antenna
installation on the Landlord's water reservoir, on the terms and conditions set forth herein.
(b) The Tenant agrees to the lease, subject to the following terms and conditions. Landlord hereby
leases to Tenant the use of that portion of the Property as generally described and depicted in the
attached Exhibit A, (collectively referred to hereinafter as the "Lease Area"). The Lease Area, located at
Lakeland Hills Water Reservoir facility, Auburn, Washington, comprises approximately an area not to
exceed 2,740 square feet.
(c) The lease shall be nonexclusive and shall not preclude the Landlord from granting a similar lease,
right, license, franchise, etc., to other carriers or other persons for telecommunications or any other
purpose.
2. Term. The initial term of this Lease shall be five (5) years commencing on the date of execution of
the Agreement (the "Commencement Date"), and terminating at midnight on the last day of the initial term
(the "Initial Term").
3. Antenna Facilities. Tenant may use the Lease Area for the transmission and reception of radio
communication signals and for the construction, installation, operation, maintenance, repair, removal or
replacement of related facilities necessary for the operation of a telecommunications facility as well as for
access and utilities. Tenant may only place its ground based telecommunications equipment within the
portion of the Lease Area identified as the "Compound" on Exhibit A. Tenant may install and maintain
landscape plantings within the Lease Area. In addition to using the Lease Area, Tenant may utilize the
Property to install and use underground conduits that begin at the Lease Area, cross the Property in a
generally straight line to the base of the water reservoir (Reservoir) and then extend up the side of the
Reservoir to antennas which Tenant will install on the railing of the Reservoir, as shown in Exhibit A
(hereinafter referred to as "Antenna Facilities").
4. Rent. Tenant shall pay Landlord, as rent, Twelve Thousand and no/100 dollars ($12,000.00) per
year ("Rent"). Rent shall be payable within twenty (20) days following the Commencement Date and
thereafter the Rent will be payable yearly, no later than the anniversary of the Commencement Date to
City of Auburn Water Utility Fund, Account Number 430.369.900, at Landlord's address specified in
Section 12 below. The Rent shall increase annually over the Rent payable the preceding year by not less
than three and one half percent (3.5%). If the average increase in the Consumer Price Index - Urban for
the Seattle - Tacoma - Bremerton area (CPI) is greater than three and one half percent (3.5%) over the
period of the Term, or any Renewal Term, then the rate at which the Rent is increased annually during
the following Renewal Term shall be adjusted to that CPI based average percentage rate. If the average
increase in the CPI is less than or equal to three and one half percent (3.5%) over the period of the Term,
or any Renewal Term, then the rate at which the Rent is increased annually during the following Renewal
Term shall be three and one half percent (3.5%). 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
Exhibit I
Resolution No. 3649
Page 1 of 10
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 at a time other than on the anniversary of the Commencement
Date, Rent shall be prorated as of the date of termination for any reason (other than a default by Tenant)
and all prepaid Rent shall be refunded to Tenant within sixty (60) days.
5. Renewal. Tenant may extend this Lease for (5) additional, five-year terms (each a "Renewal
Term"). Each Renewal Term shall be on the same terms and conditions as set forth herein, including the
Rent increase set forth in Section 4, above. This Lease shall automatically renew for each successive
Renewal Term unless Tenant notifies Landlord, in writing, of Tenant's intention not to renew this Lease, at
least ninety (90) days prior to the expiration of the Initial Term or any Renewal Term. Landlord may,
during any Renewal Term, notify Tenant, in writing, of Landlord's intention not to renew this Lease for an
additional Renewal Term, which notice shall be provided to Tenant at least one hundred and eighty (180)
days prior to the expiration of the then in effect Renewal Term. 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 shall not use the Lease Area in any way which interferes with the use of the
Property by Landlord. 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., on the Property except as might be permitted by applicable
laws, provided, however that 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 Tenants Antenna Facilities operations. The Landlord, however, is not in
any way responsible or liable for any interference with Tenants 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. In
the event that any other tenant's activities interfere with Tenant's use of Landlord's property, and Tenant
cannot work out this interference with other tenant's, Tenant may, upon 30 days notice to Landlord,
terminate this lease and restore the Landlord's Property to its original condition, reasonable wear and tear
excepted.
7. Improvements; Utilities; Access.
(a) Tenant shall have the right, at its expense, to erect and maintain on the Lease Area,
improvements, personal property and facilities necessary to operate its communications system,
including, 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. Tennant shall have the
right, at its expense, to erect and maintain on the Property including on Landlord's water reservoir,
improvements, personal property and facilities necessary to operate its communications system,
including, radio transmitting and receiving antennas and related cables and conduits and other associated
equipment as such location based system may be permitted by any county, state or federal
agency/department. Tenant shall have the right to alter, replace, and expand within the confines of the
Lease Area as defined in Section 1 and without interference to other providers / tenants, enhance and
upgrade the Antenna Facilities at any time during the term of this Lease. Tenant shall cause all
construction to occur lien-free and in compliance with all applicable laws and ordinances. Landlord
acknowledges that it shall not interfere with any aspects of construction, including, attempting to direct
construction personnel as to the location of or method of installation of the Antenna Facilities. The
Exhibit I
Resolution No. 3649
Page 2 of 10
Antenna Facilities shall remain the exclusive property of Tenant. Tenant shall have the right to remove
the Antenna Facilities at any time during and upon the expiration or termination of this Lease.
(b) Tenant, at its expense, may use any and all appropriate means of restricting access to the
Compound, including, without limitation, the construction of a fence.
(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 excepted. Upon termination or expiration of this Lease, the Lease Area
and Antenna Facilities areas shall be returned to Landlord in good, usable condition, normal wear and
tear excepted, within ninety (90) days.
(d) Tenant shall have the right to install utilities, power and telephone, at Tenant's expense, and to
improve the present utilities on the Property (including, but not limited to, the installation of emergency
power generators). Landlord agrees to cooperate with Tenant in its reasonable efforts to acquire
necessary utility service. Tenant shall, wherever practicable, install separate meters for utilities used on
the Property by Tenant. Landlord shall diligently correct any variation, interruption or failure of utility
service within Landlord's control.
(e) 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.
(f)Tennant 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.
(g) 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 $31.50 per hour in calendar year 2003. 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 notifies Landlord of unacceptable results of any title report, environmental or
soil tests prior to Tenant's installation of the Antenna Facilities on the Lease Area, or if Tenant is unable to
Exhibit I
Resolution No. 3649
Page 3 of 10
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 12 months in advance of Landlord's need to
re establish the 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. If so requested by the Landlord, Tenant shall submit additional
relevant information to assist the Landlord in making such evaluation. Landlord shall give each alternative
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. In the event Landlord ultimately determines not less than ninety (90)
days from the termination date that there is no other reasonable alternative, Tenant shall remove its Antenna
Facilities as otherwise provided in this Section 7 (c) of this Lease. If an alternative location for Tenant's
Antenna Facilities is found, Landlord and Tenant agree to enter into a new Lease Agreement with the same
terms and conditions of this Lease.
(g) If for reasons related to public health, safety or welfare, or for any operational need of the Water
Utility, 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 month written notice.
(h) Tenant shall be entitled to a pro rata refund of its prepaid Rent for any termination of this Lease by
Landlord pursuant to Subsection 8(f) or 8(g).
9. Default and Ri.qht to Cure. Notwithstanding anything contained herein to the contrary and without
waiving any other rights granted to it at law or in equity, each party shall have the right, but not the
obligation, to terminate this Lease on written notice pursuant to Section 12 hereof, to take effect
immediately, if the other party (i) fails to perform any covenant for a period of thirty (30) days after receipt
of written notice thereof to cure or (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
Exhibit I
Resolution No. 3649
Page 4 of 10
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 the Tenant's Antenna
Facilities, only for so long as this Lease has not expired of its own terms or is not terminated by either
party. Landlord hereby grants to Tenant the right to challenge, whether in a Court, Administrative
Proceeding, or other venue, on behalf of Landlord and/or Tenant, any personal property or real property
tax assessments, State leasehold tax or excise tax that may affect Tenant. If Landlord receives notice of
any personal property or real property tax assessment, State leasehold tax or excise tax against the
Landlord, which may affect Tenant and is directly attributable to Tenant's installation, Landlord shall
provide timely notice of the assessment to Tenant sufficient to allow Tenant to consent to or challenge
such assessment. Further, Landlord shall provide to Tenant any and all documentation associated with
the assessment and shall execute any and all documents reasonably necessary to effectuate the intent of
this Section 10.
11. Insurance and Subroqation and Indemnification.
(a) Tenant shall provide Commercial General Liability Insurance naming Landlord (the City of Auburn)
as additional insured in an aggregate amount of Two Million and no/100 dollars ($2,000,000.00). Tenant
may satisfy this requirement by obtaining the appropriate endorsement to any master policy of liability
insurance Tenant may maintain.
(b) Tenant shall indemnify, protect, defend and hold Landlord and its employees and agents harmless
from and against any and all claims, liabilities, judgments, costs, damages, and expenses, including
reasonable attorney's fees, arising out of or in any way related to the Antenna Facilities, including, but not
limited to, the installation, maintenance, operation or removal thereof, except to the extent that such
claim, liability, judgment, cost, damage or expense arises out of the sole negligent act or omission, or
willful misconduct of Landlord or its employees or agents. Landlord shall not be liable to Tenant, its
agents, employees and contractors for damage to the Antenna Facilities or any other property belonging
to Tenant from any cause, except for any damage caused by the sole negligent act or omission or willful
misconduct of Landlord or its employees or agents. Tenant waives all claims against Landlord and its
employees and agents for damage to persons or Antenna Facilities or property arising for any reason
other than a claim based on the sole negligent act or omission or willful misconduct of Landlord or its
employees or agents. Landlord and its employees and agents shall have no liability to Tenant for any
interruption of any utility service unless solely caused by the negligent act or omission or willful
misconduct of Landlord or its employees or agents.
Should a court of competent jurisdiction determine that this Lease is subject to RCW 4.24.115, 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.
12. Notices. All notices, requests, demands and other communications shall be in writing and are
effective three (3) days after deposit in the U.S. mail, 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.
Exhibit I
Resolution No. 3649
Page 5 of 10
If to Tenant, to:
VoiceStream Wireless Corporation
Attn: PCS Lease Administrator
12920 SE 38th Street
Bellevue, WA 98006
With a copy to:
VoiceStream Wireless Corporation
Attn: Legal Department
12920 SE ;38th Street
Bellevue, WA 98006
If to Landlord, to:
Public Works Director
City of Auburn
25 West Main St.
Auburn, WA 98001
With a copy to:
VoiceStream PCS III Corporation
Attn: Lease Administration Manager
19807 North Creek Parkway
Bothell, WA 98011
With a copy to:
City Attorney
City of Auburn
25 West Main St.
Auburn, WA 98001
13. Quiet Enjoyment, 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.
14. Environmental Laws. Landlord represents that it has no knowledge of any substance, chemical
or waste (collectively, "Hazardous Substance") on the Property that is identified as hazardous, toxic or
dangerous in any applicable federal, state or local law or regulation. Landlord and Tenant shall not
introduce or use any Hazardous Substance on the Property in violation of any applicable law. Landlord
shall be responsible for, and shall promptly conduct any investigation and remediation as required by any
applicable environmental laws, for all spills or other releases of any Hazardous Substance not caused in
whole or in part by Tenant, that have occurred or which may occur on the Property. Each party agrees to
defend, indemnify and hold harmless the other from and against any and all administrative and judicial
actions and rulings, claims, causes of action, demands and liability (collectively, "Claims") including, but
not limited to, damages, costs, expenses, assessments, penalties, fines, losses, judgments and
reasonable attorney fees that the indemnitee may suffer or incur due to the existence or discovery of any
Hazardous Substances on the Property or the migration of any Hazardous Substance to other properties
or the release of any Hazardous Substance into the environment (collectively, "Actions"), that relate to or
arise from the indemnitor's activities on the Property. Landlord agrees to defend, indemnify and hold
Tenant harmless from Claims resulting from Actions on the Property not caused by Landlord or Tenant
prior to and during the Initial Term and any Renewal Term of this Lease. The indemnifications in this
section specifically include, without limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any governmental authority.
This Section 14 shall survive the termination or expiration of this Lease.
15. Assignment and Subleasing. All of the terms and provisions contained herein shall inure to the
benefit of and shall be binding upon the parties hereto and their respective heirs, legal representatives,
successors and assigns. This Agreement shall not be assigned by Tenant without the express written
consent of the 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
Exhibit I
Resolution No. 3649
Page 6 of 10
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.
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.
16. Successors and Assi.qns. This Lease granted herein shall run with the land, and shall be binding
upon and inure to the benefit of the parties, their respective successors, personal representatives and
assigns. This Agreement shall not be assigned by Tenant without the express written consent of the
Landlord, which consent shall not be unreasonably withheld, delayed or conditioned.
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 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 B) 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.
Exhibit I
Resolution No. 3649
Page 7 of 10
(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 (the Lease Area, Compound, and Antenna Facilities
location within the Property), and Exhibit B (Memorandum of Lease) are 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. Headinqs. 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.
The effective date Of this Lease is the date of execution by the last party to sign (the "Effective
Date").
Exhibit I
Resolution No. 3649
Page 8 of 10
By:LANDLORD:
Printed Name: Peter B, Lewis
Its: Mayor
Date:
Taxpayer ID Number: 91-6001228
TENANT:
By:
Printed Name:
Its:
Date:
VoiceS,~ream PCS III Corporation, a Delaware corporation
· ~ .... :~;.~.+~. Affairs.
Exhibit I
Resolution No. 3649
Page 9 of 10
STATE OF ~{)/)- )
/~, )ss.
COUNTY Of )
I certify that I know or have satisfactory evidence that PC-.~C.,r' ~. Z.c~.W/,~ 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 h
free and vol t of such pa~y for the uses and ~u~oses ~entioned in the instrument. Dated: /~ ~ ~-~
,,~ or' ......... ,'. ~¥,<,, 'q
_.-.',.y..:~&~o N ~:2'-"~'- ",
~-;.:~ .,-^,.,, ~'.~ ',,,
,./.~ .,~- .0~ r~F
',,,~ o~ w ~,~_~.~-
(Use this space for notary stamp/seal)
Notary'Public
Print Name
residing at
My commission expires~'~ -/0 - ~"~ ~:~
STATE OF ~J('~ )
" ) SS.
COUNTY OF I~--)N,,/~'7 )
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 VoiceStream PCS III Corporation, a Delaware corporation, to be the free and ~lurh~)~ar~tl:;~ ~Jl~l~r;~ i ¢-~ ~ ~ r~
pa~y for the uses and pu~s~tioned in the instrument.
Dated:
'" :-:(5~'~'. 4'
' ~;~": I.ot~rF.~'~io ~
Ct ~intN~e Georgia L~m~ May
.:;~. :~-~2."XOJ My commission expires
(Use this space for notary stamp/seal)
Exhibit I
Resolution No. 3649
Page 10 of 10
EXHIBIT A
!
I
Lease
Area
~s
Exhibit A - Lease Area
Resolution No. 3649
Page 1 of I
ADBUr V
WASHINGTON
August 22, 2014
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
PCS Lease Administrator
VoiceStream Wireless Corporation
12920 SE 38th Street
Bellevue. WA 98006
Nancy Backus, Mayor
25 West Main Street * Auburn WA 98001 -4998 * W W W.eubumwa.gov * 253 -931 -3000
RE: Resolution No. 3649 - Notice of Required Relocation
In accordance with Item 12 (Notices) in Exhibit "I" of Resolution No. 3649, dated
November 7, 2003, you are hereby notified that the City of Auburn will be improving the existing
Lakeland Hills Water Reservoir Facility (SE04646). This project will require removal of all
VoiceStream (T- Mobile) equipment and components from the water reservoir. The City has
been coordinating with local representatives of T- Mobile regarding this project since
January 2014.
The City's project will provide seismic, safety, security, and operational improvements to the
water reservoir as well as a new interior and exterior protective coating. This project is
scheduled to begin advertising for construction bids in September 2014 with construction
beginning in October 2014.
Please contact me at 253.804.5032 if you have any questions.
Sind
atthe Lar n, PE
Projec n sneer
Community Development & Public Works Department
ML /mt
cc: Dam Daskam — City of Auburn
Lisa Moore — City of Auburn
Susan Fenhaus — City of Auburn
VoiceStream Wireless Corporation — Legal Department
VoiceStream PCS III Corporation — Lease Administration Manager
George Johnston — Lexcom
File: CP0765 — 2.30
AUBURN* MORE li -IAN YOU IMAGINED
ADBOTY OF
I T Nancy Backus, Mayor
WASHINGTON ` 25 West Main Street * Ftuburn WA 98001 -4998 * www.auhurnwa.gov * 253- 931 -3000
August 22, 2014
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
PCS Lease Administrator
VoiceStream Wireless Corporation
12920 SE 38th Street
Bellevue, WA 98006
RE: Resolution No. 3649 - Notice of Required Relocation
In accordance with Item 12 (Notices) in Exhibit "I" of Resolution No. 3649, dated
November 7, 2003, you are hereby notified that the City of Auburn will be improving the existing
Lakeland Hills Water Reservoir Facility (SE04646). This project will require removal of all
VoiceStream (T- Mobile) equipment and components from the water reservoir. The City has
been coordinating with local representatives of T- Mobile regarding this project since
January 2014.
The City's project will provide seismic, safety, security, and operational improvements to the
water reservoir as well as a new interior and exterior protective coating. This project is
scheduled to begin advertising for construction bids in September 2014 with construction
beginning in October 2014.
Please contact me at 253.804.5032 if you have any questions.
Sincerely
- r
atthe Lar n, PE
Projec �En ineer
Community Development & Public Works Department
ML /mt
cc: Dani Daskam — City of Auburn
Lisa Moore — City of Auburn
Susan Fenhaus — City of Auburn
VoiceStream Wireless Corporation — Legal Department
VoiceStream PCS III Corporation — Lease Administration Manager
George Johnston — Lexcom
File: CP0765 — 2.30
AUBURN* MORN -1-1 -IAN YOU IMAGINLD
k
ACITYOF �.....,•"T' :.;s'��•
/�,.�T�'T:�T•T'4l f 1\T Nancy Backus, Mayor
1 1tJ iJ 1\l �I
- - WAS H I NGTO N ZS West Main Stree[ R l+uburn WA 9H(bl 4998 � www aubumvia.gov � 251-931-3000
�
April 7, 2015
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
PCS Lease Administrator
VoiceStream Wireless Corporation
(2920 SE 38`h Street
Bellewe, WA 98006
I
Re: Notice to Terminate �
In accordance with the Site Lease Agreement(Exhibit I of Resolution No. 3649) dated
December 4,2003, you aze hereby notified that the City oFAuburn will be terminating the lease
for the Lakeland Hills Water Reservoir Facility(SE04646).
Termination shal]be effective October 7, 2015, Please remove all equipment no later than that
date and retum the facility to its original condition, allowing for normal weaz and teaz.
�
Please contact me at 253-288-3158 if you have eny questions. i
Sincerely, �
I
� �
�rti
Lisa Moore
Property& Facilities Manager
Cc: Dani Daskam—Ciry of Auburn
Susan Fenhaus—City of Aubum
VoiceStream Wireless Corporation— Legal Department
VoiceStream PCS [II Corporation— Lease Administrator Manager
I
File: CP0765—230 I
AUBURN * MORE THAN YOU IMAGINED