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RESOLUTION NO. 3886
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 NEW
CINGULAR WIRELESS PCS, 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 New Cingular
Wireless PCS, LLC, in substantial conformity with the agreement attached
hereto, for the purpose of leasing property at 5702 South 316th Street, Auburn,
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. 3886
August 3, 2005
Page 1
c,-B eM+-
Dated and Signed this I -I day of _~' , 2005.
OF AUBURN
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P TER B. LEWIS
MAYOR
ATTEST:
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Danielle E. Daskam,
City Clerk
AP~VED AS TO FORM:
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;/ f2J1::!) /: '
aniel B.
City Attorney
Resolution No. 3886
August 3, 2005
Page 2
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SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT ("Lease") is by and between the Citv 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 ("Landiord") and New Cingular Wireless PCS, LLC,
a Delaware limited liability company, successor in interest to AT&T Wireless Services of
Washington, LLC, an Oregon limited liability company, dba AT&T Wireless, by AT&T Wireless
Services, Inc., a Delaware corporation, its Member, having a mailing address of 6100 Atlantic
Boulevard, Norcross, GA 30071 ("Tenant").
1. Lease Aqreement.
(a) Landlord hereby leases to Tenant a portion of the real property legally described as
follows:
"THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 11, TOWNSHIP 21 NORTH, RANGE 4 EAST W.M., EXCEPT THE
WEST 663 FEET OF THE NORTH 663 FEET OF THE SOUTH 693 FEET
THEREOF, AND EXCEPT THE SOUTH 30 FEET THEREOF CONVEYED
TO THE CITY OF AUBURN FOR SOUTH 316TH STREET, BY INSTRUMENT
RECORDED UNDER RECORDING NO. 8503210865 AS PROVIDED BY
RESOLUTION NO. 1565 OF THE CITY OF AUBURN; SITUATE IN THE
CITY OF AUBURN, COUNTY OF KING, STATE OF WASHINGTON",
(collectively referred to hereinafter as the "Property").
The Lease includes the right to operate a personal communications service antenna
installation on Landlord's property, on the terms and conditions set forth herein.
(b) Tenant agrees to the Lease, subject to the following terms and conditions. Landlord
hereby leases to Tenant the use of that portion of the Property as legally described as follows:
"COMMENCING AT THE SOUTHEAST CORNER OF THE WEST 663.0
FEET OF THE NORTH 663.0 FEET OF THE SOUTH 693.0 FEET OF THE
NORTHEAST ONE QUARTER OF THE SOUTHWEST ONE QUARTER OF
SECTION 11, TOWNSHIP 21 NORTH, RANGE 4 E., W.M.; THENCE
NORTH 00 25' 35" EAST ALONG THE EAST LINE OF SAID PARCEL
249.00 FEET; THENCE SOUTH 89 0 34' 25" EAST 40.00 FEET TO THE
TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 89034' 25"
EAST 80.00 FEET; THENCE SOUTH 0 0 25' 35" WEST 75.00 FEET;
THENCE NORTH 89 0 34' 25" WEST 80.00 FEET; THENCE NORTH 0 0 25'
35" EAST 75.00 FEET TO THE TRUE POINT OF BEGINNING; SITUATED
IN THE CITY OF AUBURN, RECORDS OF KING COUNTY,
WASHINGTON"
(collectively referred to hereinafter as the "Lease Area").
The Lease Area, located at 5702 South 316t" Street, Auburn. Washinqton, comprises
approximately an area not to exceed 6,000 square feet.
(c) The Lease shall be nonexctusive 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.
(d) Landlord further hereby leases to Tenant the use of that portion of the Property as legally
described as follows:
"BEGINNING AT THE SOUTHEAST CORNER OF THE WEST 663.0 FEET
OF THE NORTH 663.0 FEET OF THE SOUTH 693.0 FEET OF THE
NORTHEAST ONE QUARTER OF THE SOUTHWEST ONE QUARTER OF
SECTION 11, TOWNSHIP 21 NORTH RANGE 4 E., W.M.; THENCE NORTH
o 0 25' 35" EAST 249.00 FEET; THENCE SOUTH 89 0 34' 25" EAST 40.00
FEET; THENCE SOUTH 0 025' 35" WEST 75.00 FEET THENCE SOUTH 89
o 34' 25" EAST 80.00 FEET; THENCE SOUTH 0 . 25' 35" WEST 47.00
FEET; THENCE NORTH 89 034' 25" WEST 90.00 FEET; THENCE SOUTH
o 0 25' 35" WEST 40.00 FEET; THENCE SOUTH 48 0 00' 00" EAST 80.00
FEET; THENCE SOUTH 23 0 30' 00" EAST 33.60 FEET MORE OR LESS
TO THE NORTH MARGIN OF SOUTH 316TH STREET; THENCE SOUTH 88
039' 09" WEST ALONG SAID NORTH MARGIN 103.52 TO THE POINT OF
BEGINNING; SITUATED IN THE CITY OF AUBURN, RECORDS OF KING
COUNTY, WASHINGTON"
(collectively referred to hereinafter as the "Access and Utility Easement").
The Access and Utility Easement comprises approximately an area not to exceed 16,155 square
feet.
2. Term. The initial term of this Lease shall be five (5) years commencing on September 1,
2005 ("Commencement Date"), and terminating at midnight on the last day of the initial term
("Initial Term").
3. Antenna Facilities. Tenant may use the Lease Area for the transmission and reception of
radio communication signals and for the construction, installation, operation, maintenance, repair,
removal or replacement of related facilities necessary for the operation of a telecommunications
facility as well as for access and utilities. These facilities include an antenna tower (not to exceed
150 feet in height) and base, together with a supporting outbuilding for housing of electronic
equipment related to the antennas and wireless communications system and an emergency
generator (collectively, the "Antenna Facilities"), the maintenance of which shall not violate ACC
8.28.010 regarding noise.
4. Rent. Tenant shall pay Landlord, as rent, Twelve Thousand and no/100 dollars
($12,000.00) per year ("Rent"). Rent shall be payable within twenty (20) days following the
Commencement Date and thereafter the Rent will be payable yearly, no later than the
anniversary of the Commencement Date to Citv of Auburn Water Utility Fund, Account Number
430.369.900. at Landlord's address specified in Section 12 below. The Rent shall increase
annually over the Rent payable the preceding year in proportion to the increase of the "All Items"
category of the Consumer Price Index for Urban Wage Earners and Clerical Workers published
by the Bureau of Labor Statistics of the U.S. Department of Labor for Seattle-Everett Metropolitan
Area (the "Index"). The first adjustment shall be based on the amount, if any, by which the Index
for the 12'" 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 12'" month of the Lease term has increased over the
Index for the 12'" month of the preceding 12-month period. It shall be the responsibility of the
Landlord to track the CPI and notify the Tenant of increases or reductions in the Rent. Landlord
shall notify Tenant within 90 days of the commencement of the Renewal Term as to the revised
rate at which the Rent shall be increased annually thereafter. Landlord will invoice Tenant for
back Rent due or refund over payment as necessary to correct the payment received for the first
year of the Renewal Term. If at any time the 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 ieast one hundred and eighty (180) days prior to the expiration of the
then in effect Renewal Term. Landlord may, during the final one hundred and eighty (180) days
of the Initial Term or any Renewal Term, conduct a market survey to determine the fair market
value of the Lease. The Rent for the next Renewal Term will be established by the results of the
market survey with each subsequent years Rent governed by the terms of Section 4, however,
under no circumstance will the Rent decrease as a result of the market survey below the amount
of the most recently established rate in existence prior to the market survey. If Landlord and
Tenant cannot reach agreement on the Rent for the next Renewal Term prior to the end of the
initial or any renewal term the Lease will not renew. If Tenant shall remain in possession of the
Lease Area at the expiration of this Lease or any Renewal Term without a written agreement,
such tenancy shall be deemed a month-to-month tenancy under the same terms and conditions
of this Lease.
6. Interference. Tenant and Landlord shall not operate in a manner which interferes with the
other 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 iessee, 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 applicabie laws and FCC rules and regulations. In the event there is
interference between Tenant and any third party, such interference will be resolved by and
between the parties affected; however, if such interference cannot be resolved to Tenant's
satisfaction within forty-eight (48) hours from commencement of such interference, then the
parties acknowledge that Tenant will suffer irreparable injury, and therefore, Tenant will have the
right, in addition to any other rights that it may have at law or in equity, to terminate this Lease
upon 30 days notice to Landlord and restore the Landlord's Property to its original condition,
reasonable wear and tear and loss due to casualty or other causes beyond Tenant's control
excepted.
7. Improvements: Utilities; Access.
(a) Tenant shall have the right, at its expense, to erect and maintain on the Lease Area,
improvements, personal property and facilities necessary to operate its communications system,
including, antenna tower and base, radio transmitting and receiving antennas, and related cables
and conduits, equipment shelters and/or cabinets and related cables and utility lines and a
location based system, including coaxial cable, base units and other associated equipment as
such location based system may be permitted by any cpunty, state or federal agency/department.
Tenant shall have the right to alter, replace, and expand within the confines of the Lease Area as
defined in Section 1 and without interference to other providers / tenants, enhance and upgrade
the Antenna Facilities at any time during the term of this Lease. Tenant shall cause all
construction to occur lien-free and in compliance with all applicable laws and ordinances.
Landlord acknowledges that it shall not interfere with any aspects of construction, including,
attempting to direct construction personnel as to the location of or method of installation of the
Antenna Facilities. The Antenna Facilities shall remain the exclusive properly of Tenant. Tenant
shall have the right to remove the Antenna Facilities at any time during and upon the expiration or
termination of this Lease.
(b) Tenant shall, at its sole expense, secure the Lease Area with a perimeter security fence
including a gate at the entrance.
(c) Tenant shall, at Tenant's expense, keep and maintain the Lease Area and Antenna
Facilities now or hereafter located on the Property in commercially reasonable condition and
repair during the term of this Lease, normal wear and tear and loss due to casually or other
causes beyond Tenant's control excepted. Upon termination or expiration of this Lease, the
Lease Area and Antenna Facilities areas shall be returned to Landlord in good, usable condition,
normal wear and tear and loss due to casualty or other causes beyond Tenant's control excepted,
within ninety (90) days.
(d) Tenant shall have the right to install utilities, power and telephone, at Tenant's expense,
and to improve the present utilities on the Property (including, but not limited to, the installation of
emergency power generators). Landlord agrees to cooperate with Tenant in its reasonable
efforts to acquire necessary utility service. Tenant shall, wherever practicable, install separate
meters for utilities used on the Property by Tenant. Landlord shall diligently correct any variation,
interruption or failure of utility service within Landlord's control.
(e) Tenant shall have 24-hours-a-day, 7 -days-a-week access to the Lease Area ("Access") at
all times during the Initial Term of this Lease and any Renewal Term. In the event Landlord, its
employees or agents unreasonably deny Access to Tenant, its employees or agents, Tenant
shall, without waiving any other rights that it may have at law or in equity, deduct from Rent
amounts due under this Lease an amount equal to Fifty and no/100 Dollars ($50.00) per day for
each day that Access is impeded or denied.
8. Termination. Except as otherwise provided herein, this Lease may be terminated, without
any penalty or further liability as follows:
(a) upon thirty (30) days' written notice by Landlord if Tenant fails to cure a default for
payment of amounts due under this Lease within that thirty (30) day period;
(b) immediately if Tenant is unable to obtain, maintain, or otherwise forfeits or cancels any
license (including, without limitation, an FCC license), permit or any Governmental Approval
necessary to the installation and/or operation of the Antenna Facilities or Tenant's business;
(c) upon ninety (90) days' written notice by Tenant if the Lease Area or the Antenna Facilities
are, or become unacceptable under Tenant's design or engineering specifications for its Antenna
Facilities or the communications system to which the Antenna Facilities belong:
(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.
(I) 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
altemative 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 altematives and
advise Tenant in writing if one or more of the alternatives is suitable to accommodate Tenant's
Antenna Facilities. To be a suitable altemative 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 altemative 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
altemative location can be found, Tenant shall remove its Antenna Facilities as otherwise provided in
this Section 7 (c) of this Lease. If an altemative 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.
(gJ If, during the term of this Lease there is a determination made pursuant to an official
unappealable order of the Federal Communications Commission or any other applicable law,
order, ordinance, regulation, directive, or standard as stated above that use of the Antenna
Facilities by the Tenant poses a human health hazard which cannot be remediated, then (a)
Tenant shall immediately cease all operations of the Antenna Facilities, and (b) the Lease shall
terminate as of the date of such order without further liability. If for reasons related to public
health, safety or welfare, Landlord determines that this Lease must be terminated, then Landlord
reserves rights of unilateral termination and will do so by providing Tenant with a six (6) month
written notice.
(h) Tenant shall be entitled to a pro rata refund of its prepaid Rent for any termination of this
Lease by Landlord pursuant to Subsection 8(1) or 8(g).
9. Default and Rioht 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 nptice
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
(d) immediately upon written notice by Tenant if the Lease Area or the Antenna Facilities are
destroyed or damaged so as in Tenant's reasonable judgment to substantially and adversely
affect the effective use of the Antenna Facilities. In such event, all rights and obligations of the
parties shall cease as of the date of the damage or destruction, and Tenant shall be entitled to
the reimbursement on a prorated basis of any Rent prepaid by Tenant. If Tenant elects to
continue this Lease, then all Rent shall abate until the Lease Area and/or the Antenna Facilities
are restored to the condition existing immediately prior to such damage or destruction; or
(e) at the time title to the Property transfers to a condemning authority, pursuant to a taking of
all or a portion of the Property sufficient in Tenant's determination to render the Lease Area
unsuitable for Tenant's use. Landlord and Tenant shall each be entitled to pursue their own
separate awards with respect to such taking.
(f) Landlord may terminate this Lease if Landlord needs the Lease Area for expansion of
Landlord's responsibility to provide its services, and Landlord has no reasonable or economical
alternative site available, provided Landlord provides Tenant written notice twelve (12) months in
advance of Landlord's need to re-establish Landlord's sole use of the Lease Area. Upon
Tenant's receipt of written notice, Tenant shall have six (6) months to submit to Landlord
alternative locations for its Antenna Facilities. Such alternative locations may be on the Property
or other properties owned or managed by Landlord. Landlord shall evaluate such alternatives and
advise Tenant in writing if one or more of the alternatives is suitable to accommodate Tenant's
Antenna Facilities. To be a suitable alternative location, such location will not unreasonably result in
any interruption of the communications service of Tenant on Landlord's Property; nor will it impair, or
in any manner alter, the quality of communications service provided by Tenant on and from
Landlord's owned or managed properties. Tenant shall submit additional relevant information to
assist the Landlord in making such evaluation. Landlord shall give each alternative location
proposed by Tenant full and fair consideration, within a reasonable time so as to allow for the
relocation work to be performed in a timely manner. If, in Tenant's reasonable judgment, no suitable
alternative location can be found, Tenant shall remove its Antenna Facilities as otherwise provided in
this Section 7 (c) of this Lease. If an alternative location for Tenant's Antenna Facilities is found,
Landlord and Tenant agree to enter into a new Lease Agreement with the same terms and
conditions of this Lease.
(g) If, during the term of this Lease there is a determination made pursuant to an official
unappealable order of the Federal Communications Commission or any other applicable law,
order, ordinance, regulation, directive, or standard as stated above that use of the Antenna
Facilities by the Tenant poses a human health hazard which cannot be remediated, then (a)
Tenant shall immediately cease all operations of the Antenna Facilities, and (b) the Lease shall
terminate as of the date of such order without further liability. If for reasons related to public
health, safety or welfare, Landlord determines that this Lease must be terminated, then Landlord
reserves rights of unilateral termination and will do so by providing Tenant with a six (6) month
written notice.
(h) Tenant shall be entitled to a pro 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 Rioht 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 foregoing, Tenant shall pay any personal property tax, State
leasehold tax, excise tax, real property tax or any other tax or fee which are directly attributable to
the presence or installation of Tenant's Antenna Facilities, only for so long as this Lease has not
expired of its own terms or is not terminated by either party. Landlord hereby grants to Tenant
the right to challenge, whether in a Court, Administrative Proceeding, or other venue, on behalf of
Landlord and/or Tenant, any personal property or real property tax assessments, State leasehold
tax or excise tax that may affect Tenant. If Landlord receives notice of any personal property or
real property tax assessment, State leasehold tax or excise tax against the Landlord, which may
affect Tenant and is directly attributable to Tenant's installation, Landlord shall provide timely
notice of the assessment to Tenant sufficient to allow Tenant to consent to or challenge such
assessment. Further, Landlord shall provide to Tenant any and all documentation associated
with the assessment and shall execute any and all documents reasonably necessary to effectuate
the intent of this Section 10.
11. Insurance and Subrooation 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 Tenant's
operation of the Antenna Facilities, including, but not limited to, the installation, maintenance,
operation or removal thereof, except to the extent that such claim, liability, judgment, cost,
damage or expense arises out of the negligent act or omission, or willful misconduct of Landlord
or its employees or agents. Landlord shall not be liable to Tenant, its agents, employees and
contractors for damage to the Antenna Facilities or any other property belonging to Tenant from
any cause, except for any damage caused by the negligent act or omission or willful misconduct
of Landlord or its employees or agents. Tenant waives all claims against Landlord and its
employees and agents for damage to persons or Antenna Facilities or property arising for any
reason other than a claim based on the negligent act or omission or willful misconduct of Landlord
or its employees or agents. Landlord and its employees and agents shall have no liability to
Tenant for any interruption of any utility service unless caused by the negligent act or omission or
willful misconduct of Landlord or its employees or agents.
Should a court of competent jurisdiction determine that this Lease is subject to RCW 4.24.115,
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, officiais, 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.
If to Tenant. to;
With a copv to:
c/o Cingular Wireless LLC
Atln: Network Real Estate Administration
6100 Atlantic Boulevard
Norcross, GA 30071
Re: Site - SS02_Aubum
Cingular Wireless PCS, LLC
Atln: Legal Department
15 East Midland Avenue
Paramus, NJ 07652
Re: Site - SS02_Auburn
If to Landlord. to:
wnh a copv to:
Public Works Director
City of Auburn
25 West Main St.
Auburn, WA 98001
City Attorney
City of Auburn
25 West Main St.
Auburn, WA 98001
13. Quiet Eniovment. Title and Authoritv. Landlord covenants and warrants to Tenant that (i)
Landlord has full right, power and authority to execute this Lease; (i1) it has good and
unencumbered title to the Properly 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 (i1i) 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 Properly that is identified as
hazardous, toxic or dangerous in any applicable federal, state or local law or reguiation. Landlord
and Tenant shall not introduce or use any Hazardous Substance on the Property in violation of
any applicable law. Landiord 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 parly 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 indemnnee may suffer or incur due to the existence or discovery of any
Hazardous Substances on the Properly 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. Assionment and Subleasino. 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 vioiation 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.
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.
The Lease Area shall be used exclusively as a site for a wireless telecommunications
facility. The Tenant may allow use of all or a portion of the Lease Area or their Antenna Facilities
by others, with prior written approval of the Landlord.
16. Removal of Antenna Facilities. The Antenna Facilities are and shall remain the property
of the Tenant and upon the expiration or earlier term ination of th is Lease , Tenant shall, at
Tenant's sole cost and expense, remove the Antenna Facilities and restore the Lease Area to its
original condition, normal wear and tear and loss due to casualty or other causes beyond
Tenant's control excluded.
17. Miscellaneous.
(a) The substantially prevailing party in any litigation, including any arbitration to which the
parties shall submit, arising hereunder shall be entitled to its reasonable attorneys' fees and court
costs, including appeals, if any.
(b) This Lease constitutes the entire agreement and understanding of the parties, and
supersedes all offers, negotiations and other agreements. There are no representations or
understandings of any kind not set forth herein. Any amendments to this Lease must be in writing
and executed by both parties. At such time as the Auburn City Council approves any regulation
affecting telecommunications, Tenant agrees to amend this Lease, as determined by the
Landlord in order to compiy 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.
(gl 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 acknowiedge 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.
18. Headinos. The caption and paragraph headings used in this Lease are inserted for
convenience of reference only and are not intended to define, limit or affect the interpretation or
construction of any term or provision hereof.
19. Liens. Except with respect to activities for which Landlord is responsible, Tenant shall
pay as due all ciaims for work done on, and for services rendered or material furnished to, the
Antenna i1ity, and shall keep the Antenna Facility free from all liens.
burrL....:>
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'----.-.----...-....- .-"--
l
-==.-------
By:
Its:
SEP 1 9 2005
Taxpayer ID Number: 9;- &. 00 12.. 2- g
Date:
TENANT:
~
New Cingular Wireless PCS, LLC
a Delaware limited liability company
'~
By: ~.) .
Print Name:. :/ SOLl
Its: L":l<-R&'f"./vr~.e&~ A..
Date: -I'"
(acknowledgements to follow on next page)
STATE OF b,JA-
COUNTY OF k> IJ e.---
)
) ss.
)
I certify that I know or have satisfactory evidence that Ate, 13 JL"h1s the person
who appeared before me, and said person acknowledged that he signed this instrument, on oath
stated at he was authorized to execute the ~strument a,nd acknowledged it as the
at:.... ,of ,h o-f /fttbt,rl1
to be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument. ~f -
Dated: . ,I , 20GJ ~
1J~ ~lO/>~~
Notary Public. '-- . ,
Print Name 2;;611"1-<'" lie.- G JJ~..<' & I<-U
residing at GrllA._CJ~
My commission expires itJ-Z-S:~7
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STATE OF .w~1I1A/6mN' )
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COUNTY OF VA/y )
I certify that I know or have satisfactory evidence that IE.. /)()-V .dtt. / A'UI) 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
~N.1T/1/e lJJ/ld'TtJR , of New Cinguiar Wireless PCS, LLC, the limited liability company,
to be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated: ~ IcJ. Ofj
o ry Public
Print Name ~
residing at J",&fJ r.r.t.e'. IA/fi
My commission expires - 't. /,.{ "'1
Notary Public
State of Woshlngton
HEATHER MAREE VtllilGHT
Y AppoIntment Expires Mar 14, 2009
(Use this space for notary stamp/seal)
Exhibit A
MEMORANDUM OF LEASE
to the Site Lease Agreement executed on the jt;-c.- day of -.s~ l- , 2005, by and
between the City of Auburn, as Landlord, and New Cingular Wireless PC ,LLC, as Tenant.
(MOL to follow on next page)
Return to:
Graham & Dunn PC/Busch
Pier 70
2801 Aiaskan Way
Suite 300
Seattle, WA 98121
Re: Cell Site #SS02; Cell Site Name: Auburn
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 New CinQular Wireless PCS, LLC, a Delaware
limited liability company, having a mailing address of 6100 Atlantic Boulevard, Norcross, GA
30071 ("Tenant").
1. Landl~d and Tenant entered into a certain Site Lease Agreement ("Lease") on the
/9 "'"" day of ~t- ,2005, for the purpose of installing, operating and
maintaining a comm nications 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 A
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.
5. 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.
~:~~..
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By: ~1
Print Name: ~~
Its: .c:v.4:t:.D7.1VM L2/JI~(?dfi
Date; '? . to oS-
(acknowledgements to follow on next page)
STATE OF tu.4-
COUNTY OF I:>,{) V
)
) ss.
)
I certify that I know or have satisfactory evidence that ~te.y g. Le"'i'S 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 ackno'jllledged it as the
II A--fU ~ . of G i ir oT /lubu,r'1.
to be the free nd voluntary act of such party for the uses and purposes mentioned in the
instrument. J rd- /9 ~
Dated: /~.s f\ j ,
' ~~CfJA~
Notary Public , 1::;,
Print Name 1l.<l;l.iC~ E /) t2 S a f1.1
residing at E 11.... (IUd
My commission expires IJ -2-<> Z7 7
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(Use this ~8106. OI''1lotary stamp/seal)
STATE OF Jtt.4W/.(//.nlAJ )
)ss.
COUNTYOF AVU4. )
I certify that I know or have satisfactory evidence that E /.nA!' ~~kolJ 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
EltEWTI n:: ill' "'-",7""" ,of New Cingular Wireless PCS, LLC, the limited liability company,
to be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated: ./0.05
Notory PubNc
Stole ot Woshlngton
HEATHER MAREE WRIGHT
AppoIntment Expires Mar 14. 2009
(Use this space for notary stamp/seal)
N ary Public
Pn t Name
residing at
My commission expires
EXHIBIT A
DESCRIPTION OF PROPERTY
to the Memorandum of Lease executed on the ,q'!J-- day of ~ -1- , 2005 by and
between the City of Auburn, as Landlord, and New Cingular Wireless PC ,LLC, as Tenant.
The Property is described and/or depicted as follows:
"THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 11, TOWNSHIP 21 NORTH, RANGE 4 EAST W.M., EXCEPT THE
WEST 663 FEET OF THE NORTH 663 FEET OF THE SOUTH 693 FEET
THEREOF, AND EXCEPT THE SOUTH 30 FEET THEREOF CONVEYED
TO THE CITY OF AUBURN FOR SOUTH 316TH STREET, BY INSTRUMENT
RECORDED UNDER RECORDING NO. 8503210865 AS PROVIDED BY
RESOLUTION NO. 1565 OF THE CITY OF AUBURN; SITUATE IN THE
CITY OF AUBURN, COUNTY OF KING, STATE OF WASHINGTON",
RECORDING REQUESTED BY, AND
WHEN RECORDED, RETURN TO:
Richard J. Busch
Graham & Dunn PC
Pier 70
2801 Alaskan Way, Suite 300
Seattle, WA 98121-1128
Grantor:
Grantee.
Abbreviated Legal Description:
Assessor's Tax Parcel ID No.:
Site Number & Name:
CONFORMED COPY
20051104000280
GRAGAN 8 DUNN LE 36.00
PAGE001 OF 005
11/04/2005 09:22
KING COUNTY, WA
MEMORANDUM OF LEASE
City of Auburn, a municipal corporation
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
NE '/4 SW '/4 S 11-T21N-R4E, W.M.
112104-9022
Auburn (SS02)
V }`-
Return to:
Graham & Dunn PC/Busch
Pier 70
2801 Alaskan Way
Suite 300
Seattle, WA 98121
Re: Cell Site #SS02; Cell Site Name: Auburn
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 New Cinaular Wireless PCS, LLC, a Delaware
limited liability company, having a mailing address of 6100 Atlantic Boulevard, Norcross, GA
30071 ("Tenant").
1. Landlqrd 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 A
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.
5. 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: Cit of urn
By:
Peter B. Lewis
Its: Mayor SEP 19 2005
Date:
Taxpayer ID Number: ?'/ 6 60 /LL'?
TENANT:
New Cingular Wireless PC$, LLC,
a Delaware limited liability company
By:
Print Name: mo t/ .6/AeL--oZ)
Its: 'elc.e@-0. 77 v.--
Date: GTO _
S
%--I c'
(acknowledgements to follow on next page)
t
STATE OF I,v )
) ss.
COUNTY OF f A)
I certify that I know or have satisfactory evidence that Pe( e? 9 1-eWi3 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 instrumTt and acknowledged it as the
of AF- y 44"V":'-vP1
to be the free arid voluntary act of such party for the u es and purposes mentioned in the
instrument.
Dated: 1,at 1q, 20V
STATE OF 14ASY11A.14 To A/
)
) ss.
COUNTY OF &Z" )
I certify that I know or have satisfactory evidence that E. ,QOA4111-4 '40 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
ZAIZ c)ryLl D? CTULC,- of New Cingular Wireless PCS, LLC, the limited liability company,
to be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated: 'r /rte/0 .5
A// Z?
Public
Pri t Name /CWT
Notary Public residing at S.EATn[ vVA
State of Washington My commission expires 62. l:$? D ,2
HEATHER MAREE WRIGHT
Appointment Expires Mar 14, 2009
(Use this space for notary stamp/seal)
5'? r
y
EXHIBIT A
DESCRIPTION OF PROPERTY
to the Memorandum of Lease executed on the I9 h- day of 2005 by and
between the City of Auburn, as Landlord, and New Cingular Wireless PC 6, LLC, as Tenant.
The Property is described and/or depicted as follows:
THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 11, TOWNSHIP 21 NORTH, RANGE 4 EAST W.M., EXCEPT THE
WEST 663 FEET OF THE NORTH 663 FEET OF THE SOUTH 693 FEET
THEREOF, AND EXCEPT THE SOUTH 30 FEET THEREOF CONVEYED
TO THE CITY OF AUBURN FOR SOUTH 316TH STREET, BY INSTRUMENT
RECORDED UNDER RECORDING NO. 8503210865 AS PROVIDED BY
RESOLUTION NO. 1565 OF THE CITY OF AUBURN; SITUATE IN THE
CITY OF AUBURN, COUNTY OF KING, STATE OF WASHINGTON