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AG 19-090 - New Cingular Wireless —RETURN AAUriemirnoat,xT: CITY OF FEDERAL WAY LALAW DEPARTMENT ROUTING FORM LAS GvA l ORIGINATING DEPT./DIV: p ORIGINATING STAFF PERSON: t U Iv l PJ LW)W0Y1S EXT: p1L ca 3. DATE REQ.BY: TYPE OF DOCUMENT(CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT(E.G.,RFB,RFP,RFQ) ❑ PUBLIC WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES/CDBG ❑ REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT(E.G.BOND RELATED DOCUMENTS) ❑ ORDINANCE ❑ RESOLUTION ❑ CONTRACT A i ENDM NT(AG#): ❑ INTERLOCAL OTHER `7I}C. LRs2 f ( icte„..fryv...(A,--L, lA 111 l PROJECT NAME: ti/) �I U I�GV �w 1(4 PCS mr t,.eivkVIfl ± !G �,�y✓Yq NAME OF CONTRACTOR: ADDRESS: TELEPHONE E-MAIL: FAX: SIGNATURE NAME: TITLE EXHIBITS AND ATTACHMENTS:❑ SCOPE,WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS/CERTIFICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT/AMENDMENTS TERM: COMMENCEMENT DATE: ' I ( 111— COMPLETION DATE: I ZZ 4^rvt.w TOTAL COMPENSATION$ (INCLUDE EXPENSES AND SALES TAX,IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE-ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE:❑YES ❑NO IF YES,MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED ❑YES ❑NO IF YES,$ PAID BY:❑CONTRACTOR❑CITY RETAINAGE: RETAINAGE AMOUNT: ❑RETAINAGE AGREEMENT(SEE CONTRACT) OR 0 RETAINAGE BOND PROVIDE ❑ PURCHASING: PLEASE CHARGE TO: 0. DOCUMENT/CONTRACT REVIEW INITIAL/DATE REVIEWED INITIAL/DATE APPROVED ❑ PROJECT MANAGER ❑ DIRECTOR ❑ RISK MANAGEMENT (IF APPLICABLE) ,21 LAW 1$ I Q1 111 1. COUNCIL APPROVAL(IF APPLICABLE) SCHEDULED COMMITTEE DATE: N �/� ( COMMITTEE APPROVAL DATE:q I Z3/I4i SCHEDULED COUNCIL DATE: 1110 COUNCIL APPROVAL DATE: c '1(I e' 2. CONTRACT SIGNATURE ROUTING ❑ SENT TO VENDOR/CONTRACTOR DATE SENT: 4`q I la DATE REC'D: G19,311'1 ❑ ATTACH: SIGNATURE AUTHGRITY, INSURANCE CERTIFICATE,LICENSES,EXHIBITS ❑ CREATE ELECTRONIC REMINDER/NOTIFICATION FOR 1 MONTH PRIOR TO EXPIRATION DATE (Include dept.support staff if necessary and feel free to set notification more than a month in advance if council approval is needed.) INITIAL/DATE SIGNED ,LAW DEPARTMENT :�" Z 2 11 'SIGNATORY(MAYOR OR DIRECTOR) � _ ,(�CITY CLERK 14 ..ef ASSIGNED AG# AG• Iq,b°`C7 C8IGNED COPY RETURNEDO-ovsif.a l.S) DATE SENT: (,-?j,\Clk :OMMENTS: 1/7018 5d COUNCIL MEETING DATE: May 7,2019 ITEM#: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT:NEW CINGULAR WIRELESS PCS,LLC SITE LEASE AGREEMENT—SACAJAWEA PARK POLICY QUESTION: Should the City approve the execution of a site lease agreement with New Cingular Wireless PCS, LLC to allow installation and operation of certain equipment for use in connection with its wireless communications services? COMMITTEE: FEDRAC MEETING DATE: April 23,2019 CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: J. Ryan Call, City Attorney DEPT: Law Attachments: 1.Staff Report 2.Proposed Site Lease Agreement Options Considered: 1. Approve the Site Lease Agreement and authorize the Mayor to execute the Site Lease Agreement. 2.Take no action and provide direction to staff. MAYOR'S RECOMMENDATION: Optionl 1. MAYOR APPROVAL: % 'c 9OI! f' DIRECTOR APPROVALInitial/Date aoc27 Initial/Date Initial/Date COMMITTEE RECOMMENDATION: I move to forward the proposed Agreement to the May 7, 2019 consent agenda for approval. 6 4G4_-< Ad/6 /,, 1 ` k •_ • -- / GZ„JDov•--- Committee Chair A Committe j emier Committee Member r PROPOSED COUNCIL MOTION: "I move approval of the New Cingular Wireless PCS, LLC Site Lease Agreement and authorize the Mayor to sign said agreement." (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTIO APPROVE11 i\\P\ COUNCIL BILL# DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING(ordinances only) ORDINANCE# REVISED-12/2017 RESOLUTION# COUNCIL MEETING DATE: May 7,2019 ITEM#: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT:NEW CINGULAR WIRELESS PCS,LLC SITE LEASE AGREEMENT-SACAJAWEA PARK POLICY QUESTION: Should the City approve the execution of a site lease agreement with New Cingular Wireless PCS, LLC to allow installation and operation of certain equipment for use in connection with its wireless communications services? COMMITTEE: FEDRAC MEETING DATE: April 23, 2019 CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: J. Ryan Call, City Attorney.....................................................:.........................................................................DEPT: Law Attachments: 1. Staff Report 2.Proposed Site Lease Agreement Options Considered: 1. Approve the Site Lease Agreement and authorize the Mayor to execute the Site Lease Agreement. 2. Take no action and provide direction to staff. .............................................................................................................................................................................................................................................................................................................................................................................................................................................................................. MAYOR'S RECOMMENDATION: Option 1. MAYOR APPROVAL: %/'Sfrit 77 %6S/Ic' DIRECTOR APPROVAL: dt(,' i,hsli"<27 Committee Council Initial Date Initial/Date Initial/Date COMMITTEE RECOMMENDATION: I move to forward the proposed Agreement to the May 7, 2019 consent agenda for approval. _:.fA: 1. J. - e-46 _ _,./ -Committee Chair Committee Member Committee Member PROPOSED COUNCIL MOTION: "I move approval of the New Cingular Wireless PCS, LLC Site Lease Agreement and authorize the Mayor to sign said agreement. " (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) _ COUNCIL ACTION: ❑ APPROVED COUNCIL BILL# ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING(ordinances only) ORDINANCE# REVISED 12/2017 RESOLUTION# CITY OF FEDERAL WAY MEMORANDUM DATE: April 8, 2019 TO: City Council Members VIA: Jim Ferrell, Mayor Pal €4/0 T FROM: J. Ryan Call, City Attorney j-42G 4/1•5 SUBJECT: New Cingular Wireless PCS, LLC Site Lease Agreement— Sacajawea Park Location Financial Impacts: The revenue to the City for the New Cingular Wireless PCS, LLC site lease agreement— Sacajawea Park will be$2,921.85 per month with an annual increase of 4%on January 1st of each calendar year during the term and renewal terms of the lease. Background Information: New Cingular Wireless PCS,LLC seeks to lease property from the City through a site lease agreement for a portion of property located at Sacajawea Park to allow installation and operation of certain equipment for use in connection with its wireless communication services. Exhibits A and B of the site lease agreement indicates the exact location of the leased space. The site lease agreement is for a five year term that includes (1) automatic renewal of an additional five year term. An agreement for this specific site has been in place since 2002 under the name Cingular Wireless LLC on behalf of Pacific Bell Wireless Northwest,LLC. Since the 2002 agreement has been in place,the contractor has changed ownership and is currently operating under the name New Cingular Wireless PCS,LLC. That agreement expired in 2017 and that expiration is the reason they are requesting a new site lease agreement. This agreement is substantially similar to other site lease agreements currently in effect for other companies. Rev.7/18 41/4 CITY OF CITY HALL 33325 8th Avenue South Federal Way Federa6 Way,WA 98003-6325 (253)835-7000 www c,iyoffederaiw&y corn SITE LEASE AGREEMENT This Site Lease Agreement ("Lease") is made between the City of Federal Way, a Washington municipal corporation ("City"), and New Cingular Wireless PCS LLC, a Delaware limited liability company ("Tenant"). The City and Tenant are located and do business at the below addresses which shall be valid for any notice required under this Lease: NEW CINGULAR WIRELESS PCS LLC: CITY OF FEDERAL WAY: New Cingular Wireless PCS, LLC City Attorney's Office Re: Cell Site No.: WA677 33325 8th Ave. S. Cell Site Name: STEEL LAKE (WA) Federal Way, WA 98003-6325 Fixed Asset No.: 10031010 (253) 835-7000 (telephone) 575 Morosgo Drive NE (253) 835-2569 (facsimile) Atlanta, GA 30324 Melissa.Plemmons@cityoffederalway.com 1-866-921-6959 (telephone) With a required copy of the notice sent to: New Cingular Wireless PCS, LLC AT&T Legal Department-Network Counsel Re: Cell Site No.: WA677 Cell Site Name: STEEL LAKE (WA) Fixed Asset No.: 10031010 208 South Akard Street Dallas, TX 75202-4206 City is the owner in fee simple of a parcel of land located in the City legally described on the attached Exhibit A (the "Property"). Tenant desires to lease a portion of space on and air space above the Property, as described below, for the installation and operation of certain equipment, which includes requisite antennas, and connecting cables and appurtenances (collectively, "Equipment") for use in connection with its wireless telephone communications service ("Service"). As of the Commencement Date, as defined below, this Lease replaces the Site Lease Agreement dated May 28, 2002, and amendments thereto, between the City of Federal Way, Washington, a Municipal Corporation and Cingular Wireless, LLC, a Delaware limited liability company, predecessor to Tenant ("Prior Lease"). In consideration of their mutual covenants,the parties agree as follows: 1. Leased Premises. City leases to Tenant and Tenant leases from City, on a non-exclusive basis, a portion of the Property consisting of space as a location for Tenant's SITE LEASE AGREEMENT - 1 - 7/2015 44%h„ CITY OF CITY HALL 33325 8th Avenue South Federal Federal Way,WA 98003-6325 (253) 835-70430 www cityoffedert hvay corn equipment shelter and space on a City-owned light pole as a location for Tenant's antennas and related equipment, together with necessary space and rights for access and utilities, all of which are described and depicted in attached Exhibit B and Exhibit C (the "Premises"). Tenant may locate its Equipment on the Premises in the manner as described specifically in the attached Exhibit C. Tenant may not add Equipment in addition to that shown on Exhibit C other than as may be approved in writing by the City, which approval may be withheld in the City's sole and absolute discretion. Notwithstanding the foregoing, Tenant may update or replace the Equipment in accordance with Section 7—Improvements. 2. Term. This Lease shall be five (5) years and shall commence September 1st, 2017 (the "Commencement Date") and shall end at 12:00 a.m. (midnight) on the fifth (5th) anniversary of the Commencement Date. This Lease will automatically renew for one (1) additional five (5) year term (each additional five (5) year term shall be defined as an "Extension Term"), upon the same terms and conditions unless Tenant notifies City in writing of Tenant's intention not to renew this Lease at least six (6)months prior to the expiration of the Initial Term or then-existing Extension Term. The City may refuse to renew (i) in the event of breach of the Lease during the preceding term, or(ii) any other reason determined by the City in its reasonable discretion. Any such refusal shall be in writing and shall be sent to Tenant at least six(6) months prior to expiration of the then current five (5) year term. 3. Rent. a. Commencing on September 1st, 2017 and on the first day of each month thereafter, Tenant shall pay to City as rent Two Thousand Nine Hundred Twenty-One and 85/100 DOLLARS ($2,921.85) ("Rent") per month. Rent for any fractional month at the beginning or at the end of the Term or Renewal Term, if any, shall be prorated. Rent shall be payable to the City at 33325 8th Ave S, Federal Way, Washington 98003; Attention: Finance Department. Tenant shall pay the City a late payment charge equal to five percent (5%) of the amount due for any payment not paid when due. Any amounts not paid when due shall also bear interest until paid at the lesser of the rate of two percent(2%)per month or the highest rate permitted by law. b. The Rent shall be increased by four percent (4%) per year throughout the Initial Term of this Lease and Extension Terms (if any). Each 4% increase shall become effective January 1st of each calendar year. c. Pursuant to the Prior Lease, City and Tenant acknowledge that Tenant paid to City a security deposit in the amount of Five Thousand and 00/100 Dollars ($5,000.00) ("Security Deposit"). Within thirty(30) days of full execution of this Lease, Tenant shall submit to the City a supplement to the Security Deposit in an amount of Three Thousand Seven Hundred and 00/100 Dollars ($3,700.00) (the "Supplemental Security Deposit"). The Security Deposit and Supplemental Security Deposit shall be refunded at the termination of this Lease if Tenant is not in default of the Lease. In the event Tenant fails to pay Rent or other charges when due, cure periods considered, the City shall deduct such amount from the Security Deposit, and Tenant agrees to immediately refund to the City any such deduction from the Security Deposit. The Security Deposit shall be held by the City without liability for interest. SITE LEASE AGREEMENT - 2 - 7/2015 CITY OF CITY HALL Federal 33325 8th Avenue South Federal Way,WA 980036325 (253) 835-7000 www crtyoffsdera/way corn d. Additional Consideration. As additional consideration for this Lease, within thirty (30) days after the full execution of this Lease, Tenant shall reimburse the City for all of the City's costs and expenses to negotiate and execute this Lease, including attorneys' and consultants' fees and the time expended by the City staff and City Attorney's office, provided that in no event shall such reimbursement amount exceed Five Thousand and No/100 Dollars ($5,000.00); and provided further that, as a condition precedent to Tenant's obligation to reimburse the City herein, City shall provide to Tenant documentation of such costs and expenses. 4. Permitted Use of Premises. a. Tenant shall use the Premises leased herein for the installation, operation, and maintenance of its Equipment to provide Service. The Equipment and Premises may not be used for cable television services. Upon installation of Equipment, Tenant shall replace all lamps within fixtures mounted to the replacement pole. b. Tenant shall, at its expense, comply with all applicable present and future federal, state, and local laws, ordinances, rules and regulations (including laws and ordinances relating to zoning, aesthetics, landscaping, fencing, permits, removal and abandonment, screening, health, radio frequency emissions, other radiation and safety) in connection with the provision of Service and the use, operation, maintenance, construction and/or installation of Equipment on the Premises. Tenant shall obtain all required governmental approvals, authorizations, licenses and permits at Tenant's expense. City agrees to reasonably cooperate with Tenant in obtaining, at Tenant's expense, including reimbursement of City's reasonable attorney, administrative and other related fees, any licenses and permits required by Tenant's use of the Premises. Said cooperation shall in no way infer any special consideration or deviation from the land use and building construction permit approval process of the City that is applicable to the intended use of the Premises by Tenant. c. Tenant shall remove the Equipment from the Premises upon termination of the Lease. Upon removal of the Equipment, Tenant shall restore the Premises to the reasonable satisfaction of the City. All costs and expenses for the removal and restoration to be performed by Tenant shall be borne by Tenant. If, however, Tenant requests permission not to remove all or a portion of the improvements, and City consents to such nonremoval, title to the affected improvements shall thereupon transfer to City and the same thereafter shall be the sole and entire property of City, and Tenant shall be relieved of its duty to otherwise remove same. If title to any improvements transfers, City and Tenant shall execute a mutually agreeable bill of sale evidencing the transfer. d. The City reserves the right to use the Property for such purposes as it shall desire including, but not limited to, constructing or installing structures and facilities on the Property, or developing, improving, repairing or altering the Property. In furtherance of such rights, the Tenant will, upon the City's,demand and at the Tenant's sole cost and expense, remove, repair, relocate, change, or reconstruct the Equipment pursuant to the City's instructions and within the reasonable time period prescribed by the City in accordance with the provisions of SITE LEASE AGREEMENT - 3 - 7/2015 CITY OF CITY HALL e 11,444 .--. Federal Wav Feder 8th Avenue South Federal V\1ay,WA 98003-6325 (253)835-7000 www zrtyofiederalwaycam Section 5 below. e. Should Tenant expand the Premises with written approval of City, Tenant will pay and City will accept as additional Rent under the Lease an amount equal to the then current Rent calculated on a per square foot basis as multiplied by each additional square foot added to the Premises. 5. Relocation. In the event City desires to redevelop, modify, remodel or in any way alter the Property and/or any improvements located thereon ("Redevelopment"), City shall in good faith use its best efforts to fully accommodate Tenant's continuing use of the Premises. Should any proposed Redevelopment necessitate the relocation of the Tenant's Equipment, Tenant and City shall use best efforts to find a mutually acceptable alternate location for the Tenant's Equipment. Tenant shall relocate or make the necessary alterations, at Tenant's sole cost, expense and risk; provided, however,that City has provided Tenant with no less than ninety (90) days prior written notice of City's proposed Redevelopment. In the event that Tenant and City cannot agree on an alternate location for Tenant's Equipment on the Property using best efforts, either party may terminate this Lease, the effective termination date being ninety (90) days after Tenant's receipt of City's notice of the proposed Redevelopment. If the parties agree on an acceptable alternate location for Tenant's Equipment, Tenant and City agree to use their best efforts to amend this Lease to document the new, alternate Equipment location, and from and after the date Tenant begins installation of its Equipment at such new location, such new location shall be deemed the Premises (or part thereof, as applicable) herein. 6. Restoration. In the event that Tenant causes damage of any kind during the course of installing, operating or maintaining the Equipment, including damage to the premises caused by cutting, boring, jack hammering, excavation or other work, and including latent damage not immediately apparent at the time of the work, Tenant shall repair the damage and/or restore the right-of-way at its sole cost and expense, without delay or interruption and within the reasonable time period prescribed by the City. Restoration of the Premises shall be to a condition, which is equivalent to or better than the condition of the Premises prior to commencing the installation, operation or maintenance of the Equipment and to a condition satisfactory to the City. Restoration of the right-of-way surface shall either include six inches (6") of crushed surfacing top course and three inches (3") of asphalt, class "AB", or be replaced to the original condition, at the City's sole discretion. Whenever part of a square or slab or existing concrete sidewalk or driveway is cut or damaged, the entire square or slab shall be removed and replaced. All materials and compacting shall be in accordance with the "Standards and Specifications for Road, Bridge, and Municipal Construction," the most current edition, available from the Washington State Chapter of the American Public Works Association. 7. Improvements. Tenant may update or replace the exterior Equipment from time to time provided that the replacement facilities are not greater in number or size or different in type, color or shape or height than the existing facilities and that any change in their location on the Premises is approved in writing by City. Subject to the foregoing, Tenant may change the Equipment configuration specified in attached Exhibit C with the prior written approval of City. Tenant shall submit to City a written request for any such change and any supplemental materials SITE LEASE AGREEMENT -4 - 7/2015 4%6. CITY OF CITY HALL Feder8th y,WA South Federal Way.WA 98003-6325 (253) 835-7000 www ct tyoffeclet ai ay corn as may be requested, for City's evaluation and approval. City shall have thirty (30) days after receipt of all requested materials in which to respond to such request and unless City so notifies Tenant to the contrary such approval shall be deemed granted. The foregoing consent requirement and limitation on Equipment modification does not apply to that Equipment located within Tenant's equipment shelter on the Premises. Except as may be required by FAA or FCC requirements, no lights or signs may be installed on the Premises or as part of the Equipment. Tenant further agrees to monitor the Equipment for fire, smoke, intrusion, and A/C power failure by Tenant's 24-hour electronic surveillance system. In connection therewith,Tenant has the right to do all work necessary to prepare and maintain the Premises for Tenant's business operations and to install transmission lines connecting the antennas to the Equipment within the equipment shelter, and the Equipment within the equipment shelter to the main power and utility sources on the Property. All of Tenant's construction and installation work shall be performed at Tenant's sole cost and expense and in a good and workmanlike manner, in the reasonable determination of the City. Tenant shall also submit a construction schedule to the City for the City's approval, which approval shall not be unreasonably delayed or withheld. 8. Premises Access. Tenant shall have reasonable access to the Premises 24-hours-a-day, 7-days-a-week. City retains and reserves the right to access the Premises, including those portions of the light-pole on which Tenant maintains Equipment, except the City shall not have access to the interior of the equipment shelter without Tenant's consent. Tenant shall respond to requests for access to the equipment shelter within 48 hours, and consent shall not be unreasonably withheld. The City shall provide 48-hours' advance notice by telephone or email to Tenant of any routine, non-emergency access that may reasonably affect Tenant's use of the light-pole or those portions of the Equipment located thereon. In the event of any such access, regardless of whether for an emergency, City shall use commercially reasonable efforts to not tamper with or compromise Tenant's Equipment. 9. Utilities. Tenant shall, at its expense, separately meter charges for the consumption of electricity and other utilities associated with its use of the Premises and shall timely pay all costs associated therewith. 10. Maintenance. Tenant shall, at its own expense, maintain the Premises and Equipment on or attached to the Premises in a safe condition, in good repair and in a manner suitable to City. Additionally, Tenant shall keep the Premises free of debris, graffiti and anything of a dangerous, noxious or offensive nature or which would create a hazard or undue vibration, heat, noise or any interference with City services. Tenant shall have sole responsibility for the maintenance, repair, and security of its Equipment and leasehold improvements, and shall keep the same in good repair and condition during the Lease term. 11. Compliance with Laws. Tenant's use of the Premises is subject to its obtaining all certificates, permits,zoning, and other approvals that may be required by any federal, state or local authority. .Tenant shall erect, maintain and operate its Equipment in accordance with applicable site standards, statutes, ordinances, rules and regulations now or hereinafter in effect as may be issued by the Federal Communications Commission, the City, or any other federal, state or other governing bodies. Tenant specifically waives any right to claim that any aspect of SITE LEASE AGREEMENT - 5 - 7/2015 CITY OF CITY HALL 4,446,.- � � � 33325 8th Avenue South �� y Federal Way,WA 98003-6325 (253) 835-7000 www cityoffederalcuay corn this Lease is contrary to any provision of any local, state or federal law (including the Telecommunications Act of 1996) in effect as of the date of this Lease. In addition, Tenant specifically acknowledges that all or a portion of the Premises is within a "right-of-way" subject to City's regulatory authority. Nothing herein shall be deemed to limit, impair or affect City's authority to franchise or otherwise permit usage of rights-of-way pursuant to its regulatory authority. 12. Lease Subject to Future Ordinances. Tenant acknowledges that the City may develop rules, regulations, ordinances and specifications for the use of the right-of-way and City property which shall govern Tenant's Equipment and activities hereunder as if they were in effect at the time this Lease was executed by the City and Tenant covenants and agrees to be bound by same. 13. Interference. Tenant shall not use the Premises in any way that interferes with the use of the Property by City or lessees, licensees, or other entities authorized by the City with rights to the Property prior in time to Tenant's use, as long as such prior use is in accordance with applicable law, governmental regulations, and any use of telecommunications equipment is in accordance with manufactuer's specifications. With respect to lessees, licensees, or other entities authorized by the City with rights to the Property whose operations commence after installation of the Equipment hereunder, Tenant shall not make any change in its operations that causes or is intended to cause material interference with such lessees, licensees, or entities. All operations by Tenant shall be in compliance with all Federal Communications Commission (FCC) requirements. Tenant shall ensure that it's use of the Premises is in compliance with the requirements of FWRC 19.256.210 as it now exists or is hereafter amended. If Tenant reasonably determines that RF Interference (as defined below) is occurring, then City will meet and confer with Tenant within five days of City's receipt of notice of RF Interference from Tenant, and the City will provide information reasonably requested by Tenant so Tenant may attempt to determine the root cause of the RF Interference. The City will act in good faith to develop workable solutions to resolve the RF Interference in a mutually acceptable manner. The term "RF Interference" means any material and adverse physical obstruction or impairment with the radio signals or operation of Tenant's Equipment utilizing City Property authorized to be used by Tenant pursuant the Lease. 14. Termination. a. E-,:cept as otherwise provided herein, this Lease may be terminated, without penalty to Ci'y or further liability of City, as follows: i. Upon thirty (30) days written notice by either party for failure to cure a default or breach, including non-payment of amounts due under this Lease, within that thirty (30) day period; or such longer period as may be required to diligently complete a cure commenced within the thirty(30) day period; SITE LEASE AGREEMENT - 6 - 7/2015 CITY OF CITY HALL 4%ii„ 1,4,,, Federal \Nay 33325 8th Avenue South Federal Way,WA 98003-6325 (253)835-7000 www cityoffederaiway corn ii. by Tenant upon sixty (60) days' prior written notice to City for any reason or no reason, so long as Tenant pays City a termination fee equal to six (6) months' Rent, at the then-current rate; iii. Upon thirty (30) days written notice by City if Tenant abandons, vacates or ceases using the Premises or Equipment; or if Tenant becomes the subject of a bankruptcy proceeding and the bankruptcy proceeding is not vacated within 120 days; iv. Upon thirty (30) days notice written notice by City, for any reason as determined by the City in its reasonable discretion, including reasons involving public health, safety or welfare; v. Upon thirty (30) days written notice by City if Tenant fails to comply with all applicable federal, state, and local laws, including, without limitation, all governmental codes, ordinances, resolutions, standards and polices as now existing or hereafter adopted or amended, including, without limitation, all requirements of the FCC and the Federal Aviation Administration(FAA). vi. Upon thirty (30) days written notice by Tenant of a court decision described in Section 27(g) of this Lease below, and Tenant elects to terminate this Lease as a consequence of such court decision. If Tenant elects to terminate pursuant to this subsection, Tenant agrees that neither it, its successors, heirs nor assigns will seek to enter into another Site Lease Agreement with the City of Federal Way for the Premises for a period of three (3) years from the date termination is effective, and Tenant waives any claim against the City arising out of any refusal to enter into a new lease should Tenant terminate under this subsection. vii. For any other reason set forth in this Lease. b. In the event of any termination under this Section, Tenant shall pay City all monies due as rent and/or penalties, including reasonable attorney and collection fees and any other damages incurred by City as a result of such termination. In addition Tenant shall, at its sole expense, return the Premises in a manner consistent with Section 4(c) and 6 herein.. c. No re-entry and taking of possession of the Premises by City shall be construed as an election on City's part to terminate this Lease, regardless of the extent of renovations and alterations by City, unless a written notice of such intention is given to Tenant by City. Notwithstanding any reletting without termination, City may at any time thereafter elect to terminate this Lease for such previous breach. 15. Indemnity and Insurance. a. Disclaimer of Liability: City shall not, at any time, be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of Tenant's SITE LEASE AGREEMENT - 7- 7/2015 4kh, CITY OF CITY HALL Federal Wav 33325 l y,WA Sou8003 Federal Way,iNA 98003-6325 (253)835-7000 www cityoffederatway corn construction, installation, maintenance, repair, use, operation, condition or dismantling of the Premises or Tenant's Equipment and Tenant expressly assumes all such risk. b. Indemnification and Hold Harmless: Tenant shall, at its sole cost and expense, indemnify and hold harmless City and its officers, boards, commissions, employees, agents, attorneys, and contractors from and against any and all liability, damages, and claims, (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be asserted by reason of any act or omission of Tenant, its employees, agents, or contractors or which may be in any way connected with the construction, installation, operation, maintenance, repair, use, condition or dismantling of the Premises or Tenant's Equipment except for claims arising from the sole negligence of City and its officers, boards, commissions, employees, agents, attorneys and contractors. c. Insurance: During the term of this Lease, Tenant shall maintain in full force and effect and at its sole cost and expense, and naming City, its officers, boards, commissions, employees and agents as primary, non-contributing additional insureds on required commercial general and auto-liability policies, the following types and limits of insurance: i. Commercial general liability insurance on an ISO CGL form 00 01 or broader with limits of Two Million Dollars ($2,000,000) per occurrence and Five Million Dollars($5,000,000) in the annual aggregate. ii. Commercial automobile liability insurance with combined single limits of Two Million Dollars($2,000,000)per accident. iii. Worker's compensation insurance and such other insurance as may be required by law. Notwithstanding the forgoing, Tenant may, in its sole discretion, self insure any of the required insurance under the same terms as required by this Lease. In the event Tenant elects to self-insure its obligation under this Lease to include Landlord as an additional insured, the following conditions apply: (i) City shall promptly and no later than thirty (30) days after notice thereof provide Tenant with written notice of any claim, demand, lawsuit, or the like for which it seeks coverage pursuant to this Section and provide Tenant with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, lawsuit, or the like; (ii) City shall not settle any such claim, demaid, lawsuit, or the like without the prior written consent of Tenant; and (iii) City shall fully cooperate with Tenant in the defense of the claim, demand, lawsuit, or the like. d. Evidence of Insurance: Certificates of insurance for each insurance policy required by this Lease, shall be filed and maintained with City prior to commencement of the term of this Lease and thereafter. SITE LEASE AGREEMENT - 8 - 7/2015 CITY OF CITY HALL F r 33325 Feder 8th Avenue South Federal Way,WA 98003-6325 (253)835-7000 www crtyoftedera/ ay corn e. Cancellation of Policies of Insurance: Tenant shall provide at least thirty (30) days prior written notice to City of cancellation or non-renewal of any required coverage that is not replaced. f. Deductibles: All insurance policies may be written with commercially reasonable deductibles. Any deductible or self-insurance retention is the sole responsibility of the Tenant. g. License: All required insurance policies shall be with insurers licensed, authorized, or permitted to do business in the State of Washington and with a rating of A-IV unless waived by the City. h. Defense of City: In the event any action or proceeding shall be brought against the City resulting from Tenant's operations hereunder, Tenant shall, at Tenant's sole cost and expense, resist and defend the same provided, however, that Tenant shall not admit liability in any such matter on behalf of the City without the written consent of City. Nothing herein shall be deemed to prevent City from cooperating with Tenant and participating in the defense of any litigation with City's own counsel. Tenant shall pay all expenses incurred by City in response to any such actions, suits or proceedings. These expenses shall include all out-of-pocket expenses such as attorney fees and shall also include the reasonable value of any services rendered by the City's attorney, and the actual expenses of City's agents, employees, consultants and expert witnesses, and disbursements and liabilities assumed by City in connection with such suits, actions or proceedings. 16. Holding Over. Any holding over after the expiration of the term hereof, with the consent of the City, shall be construed to be a tenancy from month to month and shall otherwise be on the terms, covenants and conditions herein specified. 17. Acceptance of Premises. Tenant accepts the Premises in the condition existing as of the Commencement Date. City makes no representation or warranty with respect to the condition of the Premises and City shall not be liable for any latent or patent defect in the Premises. 18. Notices. All notices, requests, demands and communications hereunder will be given by first class certified or registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to be effective when properly sent and received, refused or returned undelivered. Notices will be addressed to the parties as shown on page 1. 19. Subleasing or Assignment. Tenant may not assign this Lease or sublet the Premises or Equipment, in whole or in part, without the prior written consent of City, which may not be unreasonably withheld. City may inquire into the qualifications and financial stability of a potential assignee or sublessee and reasonably request any information related to such inquiry and may also condition such approval upon the financial, legal and technical expertise of a proposed assignee or sublessee and upon the resolution of any compliance obligation under the SITE LEASE AGREEMENT - 9 - 7/2015 Akio,. OF CITY HALL 33325 8th Avenue South Federal Federal Way,WA 98003-6325 (253) 835-7000 www cityoffedetalway cam within forty sublet with a decision it Lease. If the City has not responded to a request to assign or five (45) days, City approval shall be deemed given. Tenant may, however, upon notice to City and without City approval, mortgage or grant a security interest in this Lease and the Equipment. Further, Tenant may assign, sell or transfer its interest under this Lease without the approval or consent of the City, to Tenant's affiliate or to any entity which acquires all or substantially all of the Tenant's assets in the market defined by the Federal Communications Commission in which the Property is located by reason of a merger, acquisition, or other business reorganization provided that any such entity has a net worth substantially similar to Tenant. Upon notification to City of such assignment, transfer or sale, Tenant will be relieved of all future performance, liabilities and obligations under this Lease. 1 this Lease shall be bindingupon 20. Successors and Assigns. Subject to Section 9, p and inure to the benefit of the parties, and their respective permitted successors and assigns. 21. Non-Waiver. Failure of City to insist on strict performance of any of the conditions, covenants, terms or provisions of this Lease or to exercise any of its rights hereunder shall not waive such rights, but City shall have the right to specifically enforce such rights at any time and take such action as might be lawful or authorized, either in law or equity. Damages are not an adequate remedy for breach. The receipt of any sum paid by Tenant to City after a breach of this Lease shall not be deemed a waiver of such breach unless expressly set forth in writing by the City. 22. Taxes. Tenant shall pay all personal property taxes (or payments in lieu of taxes) and assessments for the Premises, if any, which become due and payable during the term of this Lease attributable to the Equipment or Tenant's use of the Premises. 23. Quiet Enjoyment, Title and Authority. City represents to Tenant that: a. City has authority to execute this Lease; b. City has title to the Premises free and clear of any encumbrances, liens or mortgages, except those encumbrances, liens and mortgages and matters of record, and these and any other matters disclosed and/or otherwise apparent to Tenant; c. There is legal ingress and egress to the Premises from a right-of-way; and d. Execution and performance of this Lease will not violate any laws or agreements binding on City; e. City covenants and agrees with Tenant that upon Tenant paying the Rent and observing and performing all the terms, covenants and conditions on Tenant's part to be observed and performed, Tenant may peacefully and quietly enjoy the Premises. 24. Condemnation. In the event the Premises are taken in whole or in part by any entity by eminent domain, this Lease shall terminate as of the date title to the Premises vests in SITE LEASE AGREEMENT - 10 - 7/2015 411/4 CITY OF CITY HALL 33325 8th Avenue South 4%*4...... Federal Way Federal Way,WA 98003-6325 (253)835-7000 www cctyoftederahvay corn the condemning authority. Tenant shall not be entitled to any portion of the award paid and the City shall receive the full amount of such award. Tenant hereby expressly waives any right or claim to any portion thereof. However, Tenant shall have the right to claim and recover from the condemning authority, other than the City, such other compensation as may be separately awarded or recoverable by Tenant. If this lease terminates due to condemnation, Tenant shall promptly remove all of its Equipment from the Premises and return the Premises in a manner consistent with Section 4(c) and 6 herein. 25. Alteration, Damage or Destruction. If the Premises or any portion thereof is altered, destroyed ortdamaged so as to materially hinder effective use of the Equipment through no fault or negligence of Tenant, Tenant may elect to terminate this Lease upon thirty (30) days written notice to City. In such event, Tenant shall promptly remove the Equipment from the Premises and shall return the Premises in a manner consistent with Section 4(c) and 6 herein. This Lease (and Tenant's obligation to pay Rent) shall terminate upon Tenant's fulfillment of the obligations set forth in the preceding sentence and its other obligations hereunder, at which termination Tenant shall be entitled to the reimbursement of any Rent prepaid by Tenant. City shall have no obligation to repair any damage to any portion of the Premises. 26. Rental Stream Offer. If at any time after the date of this Lease, City receives a bona fide written offer from a third party seeking an assignment or transfer of the Rent payments associated with this Lease ("Rental Stream Offer"), City shall furnish Tenant with a copy of the Rental Stream Offer. Tenant shall have the right within ninety (90) days after it receives such copy to match the Rental Stream Offer to agree in writing to match the terms of the Rental Stream Offer. Such writing shall be in the form of a contract substantially similar to the Rental Stream Offer. If Tenant chooses not to exercise this right or fails to provide written notice to City within the ninety (90) day period, City may assign the right to receive Rent payments pursuant to the Rental Stream Offer, subject to the terms of this Lease. If City attempts to assign or transfer Rent payments without complying with this Section, the assignment or transfer shall be void. Tenant shall not be responsible for any failure to make payments under this Lease and reserves the right to hold payments due under this Lease until Landlord complies with this Section. 27. Miscellaneous. a. City and Tenant respectively represent that their signatory is duly authorized and has full right, power, and authority to execute this Lease. b. With the exception of applicable and future laws, ordinances, rules, and regulations, this Lease constitutes the entire agreement and understanding of the parties and supersedes all offers, negotiations, and other agreements of any kind. Except as previously set forth, there are no representations or understandings of any kind not set forth herein. Any modification of or amendment to this Lease must be in writing and executed by both parties. c. This Lease shall be construed in accordance with the laws of the State of Washington. SITE LEASE AGREEMENT - 11 - 7/2015 CITY of CITY HALL 33325 8th Avenue South FederFederal Vtlay.WA 98003 6325 ,..:. (253) 835-7000 www crtyuffederalw 3y corn d. Section captions and headings are intended solely to facilitate the reading thereof. Such captions and headings shall not affect the meaning or interpretation of the text herein. e. If the methods of taxation in effect at the Commencement Date of the Lease are altered so that in lieu of or as a substitute for or in addition to any portion of the property taxes and special assessments, if any, now imposed on Equipment, there is imposed a tax upon or against the rentals payable by Tenant to City, Tenant shall also pay those amounts. f. Tenant shall be responsible for obtaining all necessary approvals, authorizations and agreements from any party or entity and it is acknowledged and agreed that the City is making no representation, warranty or covenant whether any of the foregoing approvals, authorizations or agreements are required or have been obtained by Tenant from any person or entity. g. If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. In the event that a court of competent jurisdiction determines void or invalid any term of any other Lease, where such term is substantially equivalent to a term of this Lease, the City may, at its sole option and within 30 days of notice thereof by Tenant: (i) determine that such judicial determination shall not affect the terms of this Lease, which shall continue in full force and effect; (ii) determine that a term of this Lease is invalid, but severable, and that such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect; or (iii)terminate this Lease pursuant to Section 14. vii above. h. This Lease may be enforced at both law and equity. Damages are not an adequate remedy for breach. 28. Legis?ative Changes. In the event that any federal, state or local governmental entity adopts a law, ordinance, or regulation, or amends existing laws, ordinances, or regulations, and the new or amended law, ordinance, or regulation would limit, impair, or affect any of the parties' rights or obligations under this Lease, Tenant agrees that (except for changes authorized under Section 12 above) the provisions of this Lease contract shall remain lawful and binding and enforceable on the parties, and Tenant waives any rights to claim otherwise. SITE LEASE AGREEMENT - 12 - 7/2015 41116, CITY OF CITY HALL Federal Nay 33325 8th Avenue South Federal Way,WA 98003-6325 (253)835-7000 www cityoffederaiwoy corn DATED the effective date set forth above. CITY OF 'P E' L WAY: B y• .r" im Ferrell, Mayor 33325 8th Ave South Federal Way, WA 98003 ATTEST: APPROVED AS TO FORM: ha ie Courtney, CMS City Clerk City Attorney, J. Ryan Call TENANT: New Cingular Wireless PCS LLC, a Delaware limited liability company By: AT&T MobilityCorporation rP Its: Manager By: - Name 41%4 -- Title Address - STATE OF UvIeA5h�hu �o,�) ss. COUNTY OF ) 11 11 On this day personally appeared before me /O Ww-1n to me known to be the re LAO! , of AT&T Mobility Corporation, Manager of New Cingular Wireless PCS, LLC a Delaware limited liability company, that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN my hand and official seal this 22 day of Y✓i , 2011 OFFICIAL STAMP y� , {{• ( J 'wy `'.:: 'wC'wGl vhY1SV�1 �1 1���� • ROCHELLE JOHNSON HUNTER (typed/printed name of notary) •.:e7.!.' NOTARY PUBLIC-OREGON COMMISSION NO.986443 Notary Public in and for the State of C (ec c;vA . MY COMMISSION EXPIRES APRIL 11,2023 My commission expires e, 11 I ZJo 23 SITE LEASE AGREEMENT - 13 - 7/2015 Ciiv or CITY HALL 33325 8th Avenue South <, Federal Way Federal Way,WA 98003-6325 (253) 835-7000 www aty offederehway corn EXHIBIT A LEGAL DESCRIPTION OF PROPERTY The Southeast quarter of the Northeast quarter of the Southeast quarter of Section 5, Township 21 North, Range 4 East, Willamette Meridian, in King County, Washington; EXCEPT that portion thereof lying within the 16th Avenue Right-of-Way. ALSO, that portion of the North half of the Northeast quarter of the Southeast quarter of Section 5, Township 21 North, Range 4 East, Willamette Meridian, lying Southerly of the South Margin of South Dash Point Road; Except that portion thereof lying within the 16th Avenue Right-of-Way. SITE LEASE AGREEMENT - 14 - 7/2015 CITYF ea CITY HALL � ' 33325 8th Avenue South Federal Way,WA 98dd3-6325 (25 )835-7ddd www cifyoffederaiway corn EXHIBIT B LOCATION OF THE PREMISES \i � C:,, '' ' ...§, ' \l,..'''� , hag ,,.�.. E .7„,".- -: \ U ri,d �n r' j gyp r3iy �\ '--- I 16 4 v %.** ''' I Nk, -tre.t., % ., ' r, 1 . '' '- \ , , - ,, „ ,,- i, 1 1 ... , , 1 , , - \,4e,, ,,,. e ''•'' !I „.,,,,,,„ ,,,., ,, 1 7 ----\\'..1421, Fk 1 -- 1 , ,,,. ,.\\ , Y fis+ i sr _. axe, -- - Ten� �i�. SITE LEASE AGREEMENT - 15 - 7/2015 CITY t3I CITY HALL 33325 8th Avenue South ,,,% Federal Way,WA 98003-6325 , (253) 835-7000 1444w atyoffederalway corn EXHIBIT C SITE PLAN [Including Location of antennas and equipment shelter] 1 Page 1 of 2 .0 —.-—___. .77:i_ „ 1_.• I 7;.... 6 ' L,.,.,...,... j \ I -- `u' • I F p d T i . II t r r r i 4 r i ,�----max -1 go R -----'----=''.,., , 1 ,. ;:ate 7 k 1 i Ii 1 i ik. $r s°WO.c iT-ins F'i'lm FRGFG:EDENI RGEDSITEFLAN I. SITE LEASE AGREEMENT - 16 - 7/2015