Ordinance 10-1917 ORDINANCE NO. 10 -1917
AN ORDINANCE OF THE CITY OF LONGWOOD, FLORIDA,
AUTHORIZING THE CITY ADMINISTRATOR TO
EXECUTE A LEASE AGREEMENT BETWEEN THE CITY
OF LONGWOOD AND CLEAR WIRELESS, LLC FOR THE
LEASE OF APPROXIMATELY ONE HUNDRED (100) SQ. FT.
OF LAND AND SPACE ADJACENT TO AND /OR ON TIIE
CITY WATER TANK AND ALL ACCESS AND UTILITY
EASEMENTS NECESSARY OR DESIRABLE THEREFORE,
FOR A TERM OF FIVE YEARS WITH THE OPTION OF
FIVE (5) SUCCESSIVE RENEWAL TERMS AT THE
ANNUAL RENT OF $26,000 ADJUSTED ANNUALLY AT AN
INCREASE OF THREE (3) PERCENT, AND PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, Clear Wireless, LLC requested that the City of Longwood consider leasing
approximately One hundred (100) square feet of Land and space adjacent to and /or on the Water
Tank and all access and utility easements necessary or desirable therefore for the purpose of
installing and operating antennas on the tank tower; and,
WHEREAS, the City Administrator recommends that the City Commission approve the
proposed lease agreement between the City of Longwood, Florida and Clear Wireless, LLC; and,
WHEREAS, the City Commission of the City of Longwood finds that said lease is in the
best interest of the City of Longwood.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF LONGWOOD, FLORIDA, AS FOLLOWS:
SECTION 1: The City Administrator is hereby authorized to execute a lease, attached as
Exhibit "A," with Clear Wireless, LLC for a lease of approximately One hundred (100) square feet
of Land and space adjacent to and /or on the City Water Tank and all access and utility easements
necessary or desirable therefore for the purpose of installing and operating antennas on the tank
ORDINANCE NO. 10-1917
Page 1 of 3
tower, more fully described in the attached lease agreement, for a tern of five (5) years with the
option of five (5) successive terns of five (5 years) at the annual rent of $26,000 adjusted annually
with an increase of three (3) percent.
SECTION 2: SEVERABILITY. The provisions of this Ordinance are declared to be
separable and if any section, paragraph, sentence or word of this Ordinance or the application thereto
any person or circumstance is held invalid, that invalidity shall not effect other sections or words or
applications of this Ordinance. If any part of this Ordinance is found to be preempted or otherwise
superseded, the remainder shall nevertheless be given full force and effect to the extent permitted by
the severance of such preempted or superseded part.
SECTION 3: CONFLICTS. If any ordinance or part thereof is in conflict herewith, this
Ordinance shall control to the extent of the conflict.
SECTION 4: This ordinance shall become effective upon passage hereof.
FIRST READING AND TRANSMITTAL READING: (�V '1 ,2.17)/ !_;}
SECOND READING AND ADOPTION: 11�,(..I` , j . 2Old
PASSED AND ADOPTED THIS i& DAY OF [704' t4� , 2010
0
1
JOHN *SINGS , MAYOR
ATTEST:
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SARAH MIMIRUS, rC,`;1�I ICITY�CLERI{
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Approved as to form and legality for the use and reliance of the City of Longwood, Florida, only.
ORDINANCE NO. 10 -1917
Page 2 of 3
41 ; ti 4ragi
1, A Ii E,; • .'I'I' NT, ORNE
ORDINANCE NO. 10 -1917
Page 3 of 3
SITE NUMBER FL- ORL0324
COMMUNICATION SITE LEASE AGREEMENT (WATER TANK)
THIS COMMUNICATION SITE LEASE AGREEMENT ( "Agreement ") dated and is effective as of
, 2010, is between Clear Wireless LLC, a Nevada limited liability company ( "Clear Wireless" or
"Tenant "), and City of Longwood, a municipal corporation organized and existing under the laws of the State of
'Florida ( "Owner" or "Landlord ").
For good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Premises. Owner owns a parcel of land ( "Land ") and a water tank ( "Water Tank ")
located in the City of Longwood, County of Seminole, State of Florida, commonly known as 181 E. Warren Ave.
(APN: 31- 20- 30 -5AU- 0000- 1020). The Water Tank and the Land are collectively referred to herein as the
"Property." The Water Tank is referred to herein as the "Tank'Tower ". The Land is more particularly described in
Exhibit A annexed hereto. Subject to the provisions of Paragraph 2 below ( "Effective Date /Due Diligence Period "),
Owner hereby leases to Clear Wireless and Clear Wireless leases from Owner approximately One hundred (100)
square feet of Land and space adjacent to and /or on the Water Tank and all access and utility easements necessary or
desirable therefore (collectively, "Premises ") as may be described generally in Exhibit B annexed hereto.
2. Effective Date /Due Diligence Period. This Agreement shall be effective on the date of full
execution hereof ( "Effective Date "). Beginning on the Effective Date and continuing until the Term
Commencement Date as defined in Paragraph 4 below ( "Due Diligence Period "), Clear Wireless shall only be
permitted to enter the Property for the limited purpose of making appropriate engineering and boundary surveys,
inspections, and other reasonably necessary investigations and signal, topographical, geotechnical, structural and
environmental tests (collectively, "Investigations and Tests ") that Clear Wireless may deem necessary or desirable
to determine the physical condition, feasibility and suitability of the Premises. In the event that Clear Wireless
determines, during the Due Diligence Period, that the Premises are not appropriate for Clear Wireless's intended
use, or if for any other reason, or no reason, Clear Wireless decides not to commence its tenancy of the Premises,
then Clear Wireless shall have the right to terminate this Agreement without penalty upon written notice to Owner at
any time during the Due Diligence Period and at least seven (7) days prior to the Term Commencement Date. If
notice is provided to Owner of Clear Wireless' termination of this Agreement within seven (7) days of the Term
Commencement Date, Clear Wireless shall pay to Owner a sum equal to one (1) month's rent. Owner and Clear
Wireless expressly acknowledge . and agree that Clear .Wireless's access to the Property during this Due Diligence
Period shall be solely for the limited purpose of performing the Investigations and Tests, and that Clear Wireless
shall not be considered an owner or operator of any portion of the Property, and shall have no ownership or control
of any portion of the Property (except as expressly provided in this Paragraph 2), prior to the Term Commencement
Date. Clear Wireless shall be liable for any damages, causes of action, claims, losses, liabilities, costs, judgments
and expenses arising, out of Clear Wireless' use of the Property or the use of the Property by any employee, licensee,
sublessee, sublicensee, agent, contractor, subcontractor, or consultant of Clear Wireless.
3. Use. The Premises may be used by Tenant for any lawful activity in connection with the
provisions of wireless communications services, including without limitation, the transmission and the reception of
radio communication signals, the provision of WiMAX technology, and the construction, maintenance and operation
of related communications facilities. Landlord agrees, at no expense to Landlord, to cooperate with Tenant, in
making application for and obtaining all licenses, permits and any and all other necessary approvals that may be
required for Tenant's intended use of the Premises.
4. Term. The term of this Agreement shall commence upon the date Tenant begins construction of
the Tenant Facilities (as defined in Paragraph 6 below) or six (6) months following the Effective Date, whichever
first occurs ( "Term Commencement Date ") and shall terminate on the fifth anniversary of the Term
Commencement Date ( "Term ") unless otherwise terminated as provided herein. The Term may be extended for up
to five (5) successive five (5) year periods ( "Renewal Terms ") on the same terms and conditions as set forth herein
in accordance with the following provisions. This Agreement shall automatically be extended for the first five year
successive Renewal Term unless Tenant notifies Landlord of its intention not to renew at least one hundred eighty
(180) days prior to the end of the Term. However, with respect to additional Renewal Terms, such shall not be
granted to extend the Term unless agreed upon in writing by both the Landlord and Tenant. At least one hundred
eighty (180) days prior to the end of the l' five year Renewal Term and each Renewal Term thereafter, the Tenant
shall notify the Landlord in writing of Tenant's desire to renew the Term for another five (5) year period; thereafter
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if Landlord agrees to the Renewal Term, the Term shall be extended, and if Landlord does not agree to such, this
Agreement shall terminate at the end of the then current Renewal Term. The parties understand and agree,
notwithstanding the preceding sentence, that any zoning approvals, variances, building permits or land -use permits
requiring approval of the City of Longwood or any of its Boards or Commission shall be processed in accordance
with standard procedures and code requirements, and this Agreement shall not obligate the City to issue any such
approvals or permits.
5. Use Payments
5.1. Initial Rent. Within fifteen (15) business days following the Term Commencement
Date and on the first day of each year therealer, Tenant shall pay to Landlord as Rent, TWENTY SIX THOUSAND
and 00 /100 Dollars ($26,000.00) per year ( "Rent ") for use of the Premises and location of the Tenant Facilities at
the Premises, which includes the locating of antenna's on the Tank as particularly described in Exhibit B of this
Agreement.. Rent for any fractional month at the beginning or at the end of the Term or Renewal Term shall be
prorated. Rent shall be payable to Landlord at 175 W. Warren Avenue, Longwood, Florida 32750 Attention:
Finance Department. All of Tenant's monetary obligations set forth in this Agreement are conditioned upon
Tenant's receipt of an accurate and executed W -9 Form from Landlord.
5.2. Annual Increases. During the Term and any Renewal Terms exercised, the Rent shall be
adjusted on each annual anniversary of the Term Commencement Date to an amount equal to three percent (3 %) of
the Rent in effect immediately prior to the adjustment date.
5.3. Additional Tenant Facilities. In the event any additional antennas are placed, put, located
or erected on the Tank Tower or the Premises, Tenant shall pay an additional $1,500.00 per month to the Owner as
rent for each additional antenna.
5.4. Market Rate Evaluation. As Exhibit "D" to this Agreement, which is incorporated
herein and made a part hereof by this reference, Tenant shall provide Landlord, as of the date of Tenant's execution
of this Agreement, a list of the municipalities in the Greater Orlando Area, which Tenant has an existing agreement
for space on a water tank facility. Within sixty (60) days of the full execution of this Agreement, Landlord shall
have the right to evaluate whether the rents for any of Tenant's agreements listed in Exhibit D are five percent (5 %)
or greater than the Rent in this Agreement (`Market Rate"). If Landlord determines that the Rent for this
Agreement is below the Market Rate, then the Landlord and Tenant agree that this Agreement shall be modified by
an amendment, to be signed by both parties, which shall result in the Rent being increased to the Market Rate.
6. Improvements.
6.1 Tenant has the right to construct, maintain, install, repair secure, replace, remove and
operate on the Premises radio communications facilities, including but not limited to utility lines, transmission lines,
an ice bridge, an air conditioned equipment shelter, electronic equipment, three (3) transmitting and receiving
antenna„ one microwave dish antenna and equipment, a power generator and generator pad, and supporting
equipment and structures therefore ( "Tenant Facilities "). If Tenant wishes to locate additional antennas of any kind
on the Tank Tower or at or on the Premises, Tenant shall pay additional rent for each additional antenna as set forth
in Paragraph 5, above. In connection therewith, Tenant has the right to do all work necessary to prepare, add,
maintain and alter the Premises for Tenant's communications operations and to install utility lines and transmission
lines connecting antennas to transmitters and receivers. 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. Title to the Tenant Facilities
and any equipment placed on the Premises by Tenant shall be held by Tenant or its lenders or assigns and are not
fixtures, except as provided in Paragraph 16, below. Tenant has the right to remove the Tenant Facilities at its . sole
expense on or before the expiration or earlier termination of this Agreement, and Tenant shall repair any damage to
the Premises caused by such removal. Upon the expiration or earlier termination of this Agreement, Tenant shall
remove the Tenant Facilities from the Property, except as provided in Paragraph 10.3, below.
6.2. Tenant Facilities shall be installed and constructed in accordance with and exactly as set
forth on the engineering plans as approved by the City Engineer. Said construction and installation shall not deviate
from the approved plans, unless written approval for any deviation is given by Owner.
7. Access and Utilities.
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7.1 Landlord shall provide Tenant, Tenant's employees, agents, contractors, subcontractors
and assigns with access to the Premises twenty-four (24) hours a day, seven (7) days a week, at.no charge to Tenant.
Landlord grants to Tenant, and Tenant's agents, employees and contractors, a non - exclusive right and license for
pedestrian and vehicular ingress and egress across the Property, and such right and license may be described
generally in Exhibit B. Tenant shall limit the employees, agents, contractors, subcontractors and assigns authorized
to access the Property and the Premises and Tenant shall perform a security clearance check, to include terrorist
watch lists, on all persons authorized to access the Property/Premises. Tenant understands that access to municipal
potable water supply could potentially have an impact on public safety and shall complete all security clearance
checks with the upmost of due diligence.
7.2 Landlord shall maintain all access roadways from the nearest public roadway to the
Premises in a manner sufficient to allow pedestrian and vehicular access at all times under normal weather
conditions. Landlord shall be responsible for maintaining and repairing such roadways, at its sole expense, except
for any damage caused by Tenant's use of such roadways.
7.3 Tenant will secure separately metered power directly from the servicing utility company
and will pay the utility company directly for the power it consumes. In connection with the need to secure separately
metered power, Landlord grants to the local utility company the non- exclusive right to locate, construct, install,
operate, maintain, repair, replace, alter, extend, and /or remove cables and lines on, over, under and across a portion
of Landlord's Property as necessary to deliver power to the Tenant Facilities. Landlord agrees to sign any
documents, at no cost to Tenant or the utility companies, as may be required by said utility companies to provide
such service to the Premises. Any easements or rights necessary for such power or other utilities will be in locations
reasonably acceptable to Landlord and the servicing utility company
8. Holding Over. If Tenant should remain in possession of the Property after the expiration of the
primary term or any extension of this Agreement, without the exercise of an option or the execution by Landlord and
Tenant of a new Agreement, then Tenant shall be deemed to be occupying the. Premises as a tenant -at- sufferance on
a month to month basis, subject to all the covenants and obligations of this Agreement, at a monthly rental of one
and one -half (1.5) times the per -month rental then provided herein, and for a period not to exceed 6 months;
provided the City shall have the right to terminate the tenant at sufferance arrangement and to eject tenant from the
premises at any time upon 15 days notice to tenant prior to the end of any month.
9. Relocation. Owner shall have the right to require the relocation of the Tenant Facilities to a different site in
the event the Owner needs the site for development of the Property or for any municipal purpose. Owner shall
provide Tenant with one hundred and twenty (120) days prior written notice if Owner requires the relocation of
Tenant's Facilities. If relocation is required, Owner shall provide an alternate location and Tenant shall relocate the
Tenant Facilities to the new location at Tenant's expense; provided that (i) Tenant reasonably consents to the new
location, (ii) Tenant will be able, with reasonable efforts, to maintain or obtain all necessary licenses, permits or
approvals, (iii) no material interference or degradation to Tenant's use of the Premises will result, and (iv) Tenant
shall be able to locate a temporary communications facility on the Land, including receiving all necessary licenses,
permits or approvals. In the event any of the above conditions are not satisfied, Tenant shall have the right, upon
thirty (30) days notice to Landlord, to terminate this Agreement. Upon relocation of all or a portion of the Tenant
Facilities to the alternate site, all references in this Agreement to the Premises shall be deemed to include the alternate
site. Payment of rental obligations shall be stayed and suspended until Tenant's Facilities are relocated and
operational.
10. Interference. Tenant shall operate the Tenant Facilities in compliance with all Federal
Communications Commission ( "FCC ") requirements including those prohibiting interference to communications
facilities of Landlord or other lessees or licensees of the Property, provided that the installation and operation of any
such facilities predate the installation of the Tenant Facilities. Subsequent to the installation of the Tenant Facilities,
Landlord will not, and will not permit its lessees or licensees to, install new equipment on or make any alterations to
the Property or property contiguous thereto owned or controlled by Landlord, if such modifications are likely to
cause interference with Tenant's operations. In the event interference occurs, Landlord agrees to use best efforts to
eliminate such interference in a reasonable time period. Landlord's failure to comply with this paragraph shall be a
material, breach of this Agreement.
•
11. Taxes. Tenant shall pay annually any and all taxes that may be levied and assessed upon the
Property attributable to any improvements thereto made by Tenant, and the Tenant Facilities installed thereon, or
upon this Agreement or the amounts paid under the terms of this Agreement (sales taxes), or any rights arising under
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this Agreement. If any such tax is paid by Owner, Tenant shall reimburse Owner for the amount of any such tax
payment within sixty (60) days of receipt of sufficient documentation indicating the amount paid and the calculation
of Tenant's pro -rata share. Upon written request by Tenant, the Owner shall furnish evidence of payment of all such
taxes.
12. Termination.
12.1 This Agreement may be terminated without further liability on thirty (30) days prior
written notice as follows: (i) by either party upon a breach or default of any covenant or term hereof by the other
party, which default is not cured within sixty (60) days of receipt of written notice of default, except that this
Agreement shall not be terminated if the default cannot reasonably be cured within such sixty (60) day period and
the defaulting party has commenced to cure the default within such sixty (60) day period and diligently pursues the
cure to completion; provided that the grace period for any monetary default is ten (10) days from receipt of written
notice. This Agreement may be terminated by Tenant without further liability for any reason or for no reason,
provided Tenant delivers written notice of tennination to Landlord during the Due Diligence Period, at least seven
(7) days prior to the Term Commencement Date. If notice is provided to Landlord within seven (7) days of the
Term Commencement Date, Tenant shall pay to Owner a sum equal to one month's Rent.
12.2 Upon receipt of the building permit, Tenant shall post a bond in the amount of TWENTY
THOUSAND and 00 /100 dollars ($20,000), effective for the initial term of this Agreement and any extensions
which may be exercised in the future, which provides for the removal of the Tenant Facilities in the event such
Tenant Facilities are abandoned by Tenant.
12.3 Removal of Tenant Improvements: Prior to or upon termination or expiration of this
Agreement, Tenant, at its expense, shall be responsible for removing all of the Tenant Facilities and other property
from the premises and for restoring the premises to its original condition as near as practicable or otherwise
acceptable to the City. This provision shall survive termination and expiration of this Agreement.
13. Destruction or Condemnation. If the Premises or Tenant Facilities are damaged, destroyed,
condemned or transferred in lieu of condemnation, Tenant may elect to terminate this Agreement as of the date of
the damage, destruction, condemnation or transfer in lieu of condemnation by giving notice to Landlord no more
than forty-five (45) days following the date of such damage, destruction, condemnation or transfer in lieu of
condemnation. If Tenant chooses not to terminate this Agreement, Rent shall be reduced or abated in proportion to
the actual reduction or abatement of use of the Premises.
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14. Insurance; Subrogation; and Indemnity.
14.1 Tenant shall, at its sole cost and expense, at all tines during the term of this Agreement
maintain in effect a policy or policies of insurance: a) covering its personal property located on the Premises and
Tenant's improvements to the Premises paid for and installed by Tenant, providing protection against any peril
included under insurance industry practices within the classification "fire and extended coverage", providing
protection .as deemed desirable by Tenant with respect to its personal property and to the full insurable value of its
Tenant improvements paid for by Tenant; and b) Commercial General Liability with minimum limits of Three
Million Dollars ($3,000,000) for injury to or death of one (1) or more persons in any one (1) occurrence and Three
Million .Dollars ($3,000,000) for damage to or destruction of properties in any one (1) occurrence. Tenant shall
name the Landlord as an additional insured on the commercial general liability insurance policy and shall furnish
Landlord with a certificate of insurance. Copies of such insurance certificates will be supplied to Landlord prior to
the Term Commencement Date, as described in paragraph 4 of this Agreement and such certificates will be kept .
current at all times. Failure to comply with the terms of this paragraph will be deemed to be a material breach
hereof. Tenant shall give. Landlord 30 days written notice of any changes to any insurance policy described herein
prior to the effective date of any changes to said policy, but in no event shall Landlord be removed as an additional
insured or shall the coverage amounts decrease. Tenant may satisfy these insurance limits by obtaining the
appropriate endorsement to any master policy of liability insurance Tenant may maintain and /or through umbrella or
excess policies.
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14.2 Except for losses or damages due the willful misconduct or gross negligence of Landlord,
Tenant hereby releases Landlord (and its successors or assigns) from liability and waives all right of recovery
against Landlord for any loss or damage arising from Tenant's use of the Premises.
14.3 Tenant hereby agrees to use and occupy the. Premises at its own risk and hereby releases
the Landlord, its agents, officers, contractors, invitees and employees, from all claims for any damage or injury
sustained by Tenant arising from such use or occupancy, except for those resulting from the gross negligence or
willful misconduct of the Landlord, its agents, employees, or contractors. In the event that Landlord is joined in a
lawsuit which arises from, or is alleged to arise from, the negligence of Tenant or Tenant's agents, employees, or
contractors in connection with Tenant's use of the Property or Tenant's installation, operation, use or maintenance of
the. Tenant Facilities, Tenant hereby agrees to defend Landlord and to indemnify and hold Landlord and Landlord's
employees, officials, agents, invitees and contractors harmless from and with respect to any settlement of such
litigation or judgment entered therein, to include attorneys fees, pre- trial, trial and on appeal. The Landlord will
otherwise be liable for its own negligence subject to the sovereign immunity provisions of F.S. 768.28.The duties
described in this Paragraph 14.3 shall apply as of the Effective Date of this Agreement and survive the termination
and expiration of this Agreement.
15. Assignment. This Agreement may be sold, assigned or transferred at any time by Tenant to
Tenant's parent company or any affiliate or subsidiary of Tenant or its parent company, to any entity with or into
which Tenant is merged or consolidated, or to any entity resulting from a reorganization of Tenant or its parent
company. Otherwise, this Agreement may not be sold, assigned or transferred without the written consent of
Landlord, which consent shall not to be unreasonably withheld, delayed or conditioned. The parties acknowledge
and agree that withholding consent for sale, assignment or transfer to any entity not deemed credit- worthy, in
Landlord's sole estimation, shall not be deemed unreasonable. The parties acknowledge that FCC approval of any
Assignee shall be considered to meet the `credit- worthy' requirement.
16. Title and Quiet Enjoyment.
16.1 Landlord represents and warrants that (1) it has, full right, power, and authority to execute
this Agreement, (ii) Tenant may peacefully and quietly enjoy the Premises and such access thereto, provided that
Tenant is not in default hereunder after notice and expiration of all cure periods, (iii) it has obtained all necessary
approvals and consents, and has taken all necessary action to enable Landlord to enter into this Agreement and allow
Tenant to install and operate the Facility on the Premises, including without limitation, approvals and consents as
may be necessary from other tenants, licensees and occupants of Landlord's Property, and (iv) the Property and
access rights are free and clear of all liens, encumbrances and restrictions except those of record as of the Effective
Date. Notwithstanding the provisions herein, the Parties understand and acknowledge that any zoning approvals,
variances or land -use permits requiring approval of the Landlord's Land Planning Agency, Planning Board, Board
of Adjustment or other administrative board requires a noticed public hearing; is quasi-judicial in nature and that the
approval or denial of any such application is solely determined by said administrative board.
16.2 Tenant has the right to obtain a title report or commitment for a leasehold title policy
from a title insurance company of its choice. If, in the opinion of Tenant, such title report shows any defects of title
or any liens or encumbrances which may adversely affect Tenant's use of the Premises, Tenant shall have the right
to terminate this Agreement immediately upon written notice to Landlord.
17. Environmental. As of the Effective Date of this Agreement: (1) Tenant hereby represents and
warrants that it shall not use, generate, handle,, store or dispose of any Hazardous Material in, on, under, upon or
affecting the Property in violation of any applicable law or regulation, and (2) Landlord hereby represents and
warrants that (i) it has no knowledge of the presence of any Hazardous Material located in, on, under, upon or
•
affecting the Property in violation of any applicable law or regulation; (ii) no notice has been received by or on
behalf of Landlord from any governmental entity or any person or entity claiming any violation of any applicable
environmental law or regulation in, on, under, upon or affecting the Property; and (iii) it will not permit itself or any
third party to use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon, or affecting the
Property in violation of any applicable law or regulation. Without limiting Paragraph 12.3, Landlord and Tenant
shall each indemnify, defend and hold the other harmless from and against all Losses (specifically including,
without limitation, attorneys', engineers', consultants' and experts' fees, costs and expenses) arising from (i) any
breach of any representation or warranty made in this Paragraph 15 by such party; and /or (ii) environmental
conditions or noncompliance with any applicable law or regulation that result, in the case of Tenant, from operations
in or about the Property by Tenant or Tenant's agents, employees or contractors, and in the case of Landlord, from
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the ownership or control of, or operations in or about, the Property by Landlord or Landlord's predecessors in
interest, and their respective agents, employees, contractors, tenants, guests or other parties. The provisions of this
Paragraph 15 shall apply as of the Effective Date of this Agreement and survive termination of this Agreement.
"Hazardous Material" means any solid, gaseous or liquid wastes (including hazardous wastes), regulated
substances, pollutants or contaminants or terms of similar import, as such terms are defined in any applicable
environmental law or regulation, and shall include, without limitation, any petroleum or petroleum products or by-
products, flammable explosives, radioactive materials, asbestos in any form, polychlorinated biphenyls and any
other substance or material which constitutes a threat to health, safety, property or the environment or which has
been or is in the future determined by any governmental entity to be prohibited, limited or regulated by any •
applicable environmental law or regulation.
18. Bankruptcy. In the event Tenant or any of Tenant's parent or subsidiary entities files bankruptcy
(regardless of what Chapter of the US Bankruptcy Code the Tenant or one of its parent or subsidiary entities files
said bankruptcy), Tenant shall immediately either accept this Agreement and stay in full compliance with same, or
shall reject the Agreement and turn the Tenant Facilities over to the Landlord.
19. Notices. All notices, requests, demands and other communications hereunder shall be in writing and
shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by for next-
business-day delivery by a nationally recognized overnight carrier to the following. addresses:
If to Tenant, to: With a copy to: If to Landlord, to:
Clear Wireless LLC Clear Wireless LLC City of Longwood
Attn: Site Leasing Attention: Legal Department Attn: Public Works Department
4400 Carillon Point 4400 Carillon Point 175 W. Warren Ave.
Kirkland, WA 98033 Kirkland, WA 98033 Longwood, FL 32750
Telephone: 425-216-7600 Telephone: 425-216-7600 Telephone:
Fax: 425 -216 -7900 Fax: 425 -216 -7900 Fax:
Email: Siteleasing@clearwire.com
Landlord or Tenant may from time to time designate any other address for this purpose by written notice to the other
party. All notices hereunder shall be deemed received upon actual receipt or refusal to accept delivery.
20. Marking and Lighting. Tenant shall be responsible for compliance with all marking and
lighting requirements of the Federal Aviation Administration ( "FAA ") and the FCC regarding Tenant's Facilities.
Should Landlord be cited because the Property is not in compliance and should Tenant fail to cure the conditions of
noncompliance directly related to Tenant's Facilities, then Landlord may either terminate this Agreement or proceed
to cure the conditions of Tenant's noncompliance at Tenant's expense, which amounts may be assessed as a lien
upon the Tenant Facilities.
21. Miscellaneous.
21.1 If Tenant is to pay Rent to a payee other than the Landlord, Landlord shall notify Tenant
in advance in writing of the payee's name and address.
21.2 The substantially prevailing party in any legal claim arising hereunder shall be entitled to
its reasonable attorney's fees and court costs, including appeals, if any.
21.3 If any provision of the Agreement is invalid or unenforceable with respect to any party,
the remainder of this Agreement or the application of such provision to persons other than those as to whom it is
held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
21.4 Terms and conditions of this Agreement which by their sense and context survive the
termination, cancellation or expiration of this Agreement will so survive.
21.5 This Agreement shall be governed under law of the State in which the Premises are
located, and be binding on and inure to the benefit of the successors and permitted assignees of the respective
parties. Venue shall be in the County in which the Premises are located.
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SITE NUMBER. FL-OM-0324
21.6 A Memorandum of Agreement in the form attached hereto as Exhibit C may be recorded
by Tenant confirming the (i) effectiveness of this agreement, (ii) expiration date of the Term, (iii) the duration of any
Renewal Terms, and /or other reasonable terms consistent with this Agreement.
21.7 All Exhibits referred herein are incorporated herein for all purposes.
21.8 This Agreement constitutes the entire Agreement between the parties, and supersedes all
understandings, offers, negotiations and other leases concerning the subject matter contained herein. There are no
representations or understandings of any kind not set forth herein. Any amendments, modifications or waivers of
any of the terms and conditions of this Agreement must be in writing and executed by both parties.
• 21.9 Public Records Act. The Tenant acknowledges that Landlord is a Florida Municipal
Corporation and subject to Chapter 119, Florida Statutes. As such Landlord shall comply with all laws regarding
public records. Tenant acknowledges and understands that this Agreement and any and all correspondence,
documentation, memoranda, electronic correspondence and the like is subject to public inspection and is public
record.
21.10 No Liens: The Tenant acknowledges and agrees that the Property and Premises is owned
by a municipality and therefore is not subject to construction liens pursuant to Chapter 713, Florida Statues or other
liens and encumbrances due to the city's severing immunity and constitutionally protected status. Tenant shall not
permit and shall affirmatively prevent any construction or mechanic's lien and any other lien or encumbrances to be
filed or claimed against the Property or Premises, or any other part of the Property or Premises, for any labor,
services or materials furnished to the Property or Premises, Tenant's improvements to the Property or Premises or
otherwise filed or claimed arising out of or concerning the actions or omissions of Tenant or Tenant's licensees or
subtenants. If any such lien or encumbrance is filed or claimed, then Tenant shall be in default of this Agreement.
All Subtenants, licensees, contractors, subcontractors, mechanics, laborers, materialmen, and others who perform
any labor, materials or services, or otherwise participate in the improvement of the property, or any combination
thereof, shall be and are hereby given notice that Tenant is not authorized to subject Landlord's interest in the
Property or any other part of the Property to any claim for construction, mechanic's, laborers', materialmen's liens
and other liens or encumbrances, and all persons dealing directly or indirectly with Tenant may not look to the
Property or other Landlord property or funds as security for payment. Tenant shall indemnify, defend (with counsel
acceptable to the landlord) and hold Landlord harmless from and against all expenses, liens, claims or damages to
either property or person which may arise by reason of the making of any additions, improvements, alterations
and /or installations to the Property and by virtue of any liens or encumbrances filed or claimed against the Property
arising out of or concerning the actions or omissions of Tenant and Tenant's agents, employees, invitees,
contractors, subcontractor, laborers, materialmen, vendors, licensees and subtenants, including reasonable attorney's
fees and litigation costs at trial and appellate levels.
[SIGNATURES ON THE FOLLOWING PAGE(
Clearwi re Execution Copy 7 -09 -2010 - 7 - v.5- 22 -06.
SITE NUMBER: FL- ORL0324
IN WITNESS WHEREOF, the parties have entered into this Agreement effective as of the date first above written.
LANDLORD: TENANT:
City of Longwood, Clear Wireless LLC,
a municipal corporation organized and existing under the a Nevada limited liability company
laws of the State of Florida
B n x — '� B
Name: Name: ANA HEMNiERT
DIRECTOR- NETWORK DEPLUYMEN T
Title: Gpp � �� y1r\ atm\Twrn Title:
Date: (t9 1 w Date: AUG 1 9 2010
Tax 1.D.: 6 9 -"co ' i 96.
•
Witness-:: Witnesses:
(1) Si_: -/ / — (1) Sign: , .
Print Name: 45 Pri ' Name: A i - tq •4
(2) S h�� �: � � /j (2) Sign: V V ` 5
"rint Nam- Print Name: K✓ ts}e-rse -n
•
Clearwire Execution Copy 7 -09 -2010 - 8 - v.5 -22 -06
SITE NUMBER: FL- ORL0324
•
/Notary block for Landlord/
• STATE OF ,
) ss.
COUNTY 0
I certify that 1 know or have satisfactory evidence thlt is the person who appeared
before me, and said person acknowledged that he /she signed this instrument, on oath stated that he /she was
authorized to execute the instrument and acknowledged it as the tk- of
�1 , a _,, ix, Cpc cj d:o the free and voluntary act of such party
for The uses a purposes mentioned in the instrument.
Dated: 8 3D 40
di 3O4i- "r. ; `c i
Pr' t Name - /.. /
mammy
, ti + ' EVELYN COHEN . My commissio' expires •
=•: 0 r,` , Commission # DD 845039
Expires Commission # DD 845039
t
a A= ..=
xpires March 30, 2013 " "`' ' = Ex
- • pires March 30, 2013
;; f , BOnned Nu Troy Fwn Iniurance 800- 385.7019 ♦ •o
._ ° %:`,os " BonQedBwTroY Fain lnsurartce804385 .7019
(Use this space for notary stamp /seal)
/Notary block for Tenant/
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that 1 know or have satisfactory evidence that k the person who appeared before
me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute
the instrument and acknowledged it as the ' of Clear Wireless LLC, a
Nevada limited liability company, to be the free and voluntary act ofsuch party for the uses and purposes mentioned
in the instrument.
Dated:) ( 1 2o O
Notary P 4c
Print Name f�C��1� L -Le.s e
My commission expir Z V? I it
fkletcay Public
State of Wasttitiplab f
KE41L LESIER
My Appointment Expkeo Feb 16.'2011
(Use this space for notary stamp /seal)
Clearwi re Execution Copy 7 -09 -2010 - 9 - v.5 -22 -06
SITE NUMBER: EL- ORL0324
EXHIBIT A
DESCRIPTION OF LAND
to the Agreement dated -/)4,s-+ iq , 2010, by and between City of Longwood, a municipal
corporation organized and existing underahe laws of the State of Florida , as Landlord, and Clear Wireless LLC, a
Nevada limited liability company, as Tenant.
The Land is described and /or depicted as follows (metes and bounds description):
APN: 31-20-30-5AU-0000-1020
LEG SEC 32 TWP 20S RGE 30E BEG 459.1 FT E OF SE COR OF WARREN ST + E LAKE AVE RUN E
210 FT S 200 FT W 210 FT N 200 FT
•
•
Clearwi re. Execution Copy 7-09-2010 - 10 - v.5 -22 -06
•
SITE NUMBER: FL- ORL0324
EXHIBIT B
//�� DESCRIPTION OF PREMISES
to the Agreement dated /'�Y u S+ 1 Q , 2010, by and between City of Longwood, a municipal
corporation organized and existing unde laws of the State of Florida as Landlord, and Clear Wireless LLC, a
Nevada limited liability company, as Tenant.
The Premises are described and /or depicted as follows:
ATTACHED ON NEXT PAGE
•
Notes:
1. Tenant may replace this Exhibit with a survey of the Premises once Tenant receives it.
2. The Premises shall be setback from the Property's boundaries as required by the applicable governmental
authorities.
3. The access road's width will be the width required by the applicable governmental authorities, including
police and fire departments.
4. The type, number, mounting positions and locations of antennas and transmission lines are illustrative only.
The actual types, numbers, mounting positions and locations may vary from what is shown above.
5. The locations of any utility easements are illustrative only. The actual locations will be determined by the
servicing utility company in compliance with all local laws and regulations.
•
Clearvvire Execution Copy 7 1 09 -2010 - 1 1 - v:5 -22 -06
•
\s,-/
SITE NUMBER: FL ORL0324
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Clearwire Execution Copy 7 -09 -2010 - 12 - v.5 -22 -06
SITE NUMBER: FL- ORL0324
EXHIBIT C
COMMUNICATIONS FACILITY
to the Agreement dated , 2010, by and between City of Longwood, a municipal
corporation organized and existing under the laws of the State of Florida as Landlord, and Clear Wireless LLC, a
Nevada limited liability company, as Tenant.
RECORDED AT REQUEST OF, AND
WHEN RECORDED RETURN TO:
Clear Wireless LLC
4400 Carillon Point
Kirkland, WA 98033
Attn: Site Leasing
MEMORANDUM OF AGREEMENT
APN: 31- 20 -30 -5 AU- 0000 -1020
This MEMORANDUM OF AGREEMENT is entered into on , 2010, by City of Longwood,
a municipal corporation organized and existing under the laws of the State of Florida with an address at 175 W.
Warren Ave, Longwood, FL 32750 (hereinafter referred to as "Owner" or "Landlord ") and Clear Wireless LLC, a
Nevada limited liability company, with an address at 4400 Carillon Point, Kirkland, WA 98033 (hereinafter referred
to as "Clear Wireless" or "Tenant "). -
1. Owner and Clear Wireless entered into a Communication Site Lease Agreement
( "Agreement ") dated as of , 2010, effective upon full execution of the parties ( "Effective Date ")
for the purpose of Clear Wireless undertaking certain Investigations and Tests and, upon finding the Property
appropriate, for the purpose of installing, operating and maintaining a communications facility and other
improvements. All of the foregoing is set forth in the Agreement.
2. The term of Clear Wireless's tenancy under the Agreement is for five (5) years
commencing on start of construction of the Tenant Facilities or eighteen (18) months following the Effective Date,
whichever 'first occurs ( "Term Commencement Date "), and terminating on the fifth anniversary of the Term
Commencement Date with five (5) successive five (5) year options to renew.
•
3. The Land that is the subject of the Agreement is described in Exhibit A annexed hereto. The
portion of the Land being leased to Tenant and all necessary access and utility easements (the "Premises ") are set
forth in the Agreement.
In witness whereof, the parties have executed this Memorandum of Agreement as of the day and year first
written above.
LANDLORD: TENANT:
City of Longwood, Clear Wireless LLC,
a municipal corporation organized and existing under the a Nevada limited liability company
laws of the State of Florida
By: EXHIBIT ONLY — DO NOT EXECUTE By: EXHIBIT ONLY — DO NOT EXECUTE
Name: Name:
Title: Title:
Date: Date:
Clearwire Execution Copy 7 -09 -2010 - 13 - v.5 -22 -06
SITE NUMBER: FL- ORL0324
•
/Notary block for a Corporation/
STATE OF )
) ss.
COUNTY OF )
I certify that I know or have satisfactory evidence that is the person who appeared
before me, and said person acknowledged that he /she signed this instrument, on oath stated that he /she was
authorized to execute the instrument and acknowledged it as the of
, a , to be the free and voluntary act of such party
for the uses and purposes mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
EXHIBIT ONLY — DO NOT
EXECUTE
(Use this space for notary stamp /seal)
/Notary block for Tenant/
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
1 certify that I know or have satisfactory evidence that is the person who appeared before
me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute
the instrument and acknowledged it as the of Clear Wireless LLC, a Nevada limited liability company,
to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated:
Notary Public
•
Print Name
My commission expires
EXHIBIT ONLY — DO NOT
EXECUTE
(Use this space for notary stamp /seal)
Clearwire Execution Copy 7 -09 -2010 - 14- v.5 -22 -06
•
SITE NUMBER: FL 0RL0324
EXHIBIT D
MARKET RATE EVALUATION •
to the Agreement dated , 2010, by and between City of Longwood, a municipal
corporation organized and existing under the laws of the State of Florida as Landlord, and Clear Wireless LLC, a
Nevada limited liability company, as Tenant.
•
Clear Wireless LLC has existing agreements for space on municipal
owned water tank facilities with the following municipalities
located in the Greater Orlando Area as follows:
CITY OF WINTER GARDEN•
CITY OF'CASSELBERRY (2 separate locations with the same terms)
•
•
•
Clearwire Execution Copy 7 -09 -2010 - 15 - v 5-22-06
•
CITY OF LONGWOOD
LONGWOOD
FLORIDA ,>
EST , 478 Fostering citizen /rust and cultivating ca prosperous community
September 2, 2010
•
Mr. Paul Neuner
VCI Group, Inc.
Real Estate Broker
1101 North Lake Destiny Drive
Suite 130
Maitland, FL 32751
RE: Agreement between Clear Wireless LLC and the City of Longwood
Dear Mr. Neuner:
Enclosed is a fully executed original Communication Site Lease Agreement between Clear Wireless, LLC
and. the City of Longwood which became effective on August 19, 2010.
If you have any questions, please give me a call at 407/ 260 -3441.
Sincerely,
CITY OF ONG • OD
•
Sarah M. Mirus, MMC, MBA
City Clerk
SMM/eic
Enclosure
175 West Warren Avenue ® Longwood, Florida 32750 o (407) 260 -3440 Voice o (407) 260-3419 Fax
www.lonowoodll.oro