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Item 4CCITY OF SOUTH LAKE MEMORANDUM (September 1, 2009) To: Shana Yelverton, City Manager From: Robert H. Price, P.E., Public Works Director Subject: Approve Ground and Water Tower Leases for Bicentennial and Florence Water Towers with Clearwire. Action Requested: Approve two Ground and Water Tower Lease agreements with Clearwire for wireless internet equipment at the Bicentennial Park and Florence water towers. Background Information: Clearwire Communications, LLC is an operating subsidiary of Clearwire Corporation. Clearwire investors include Sprint Nextel Corporation, Comcast, Time Warner Cable, and Google. Clearwire is currently working on its multi -year network build - out initiative for a nationwide mobile internet network. The Kirkland, Washington based company offers 4G wireless internet, called CLEAR TM . The company is already providing mobile WiMAX services in Maryland, and pre -WiMAX services in certain cities in California, New York, Florida, Nevada, and Tennessee. As part of its nationwide network, the company is looking to secure wireless network sites in the Texas market. These include the Bicentennial Park and Florence water tower sites in Southlake, TX. The ground leases consist of a 10'x10' area at the Florence site, and a 10'x20' area at the Bicentennial site. The latter will be constructed adjacent to an existing T- Mobile area that is enclosed with an 8' tall cedarcrete "cocoa- colored' fence. Clearwire will enclose their equipment in an identical fence to match T- Mobile's. The antennas to be placed on the water towers consist of a total of three panel antennas and six microwave dishes per site. This is Clearwire's typical configuration. The panel antennas are 1070 mm in height or approximately 3.5 feet tall, and the microwave dishes are 15.3 inches in diameter. All antennas will be painted to match the concrete pedestals of the water towers. Public Works staff has reviewed the construction plans in detail along with Deltatek Engineering for operational, maintenance, safety, and aesthetic requirements. Furthermore, to ensure the structural integrity of the water tower, the tank manufacturer, Landmark Structures, has reviewed the construction drawings and will give final approval of the location of any pedestal cores required to route coaxial conduit. Financial Considerations: Each of the leases is in the amount of $30,120 per year for the first year, and increase by 3% annually thereafter. The initial term of the leases is for 5 years, with 4 additional 5 year extensions. Revenue to the City of Southlake is therefore, $60,240 for the first year of the leases, and an additional 3% per year thereafter for the life of the leases. Strategic Link: The approval of the two Ground and Water Tower Lease agreements with Clearwire support the City's focus areas of Performance Management and Service Delivery, and Partnerships and Volunteerism. The specific corporate objectives that are met by the approval of the lease agreements include: Collaborate with select partners to implement service solutions; Pursue innovative service delivery options; Optimize use of technology; and Maximize return on investments. Citizen Input/ Board Review: None Legal Review: The leases are the City's standard Ground and Water Tower Lease Agreement which has been reviewed by City Attorney, Ms. Cara White. Alternatives: Deny the lease agreements. Supporting Documents: The two agreements are attached and include construction drawings. Both lease agreements have already been signed by John A. Storch, Vice President of Network Deployment, on behalf of Clear Wireless LLC. Staff Recommendation: Approve the two Ground and Water Tower Lease agreements with Clearwire. Staff Contact: Robert H. Price, P.E., Director of Public Works Cristina McMurray, CPM, Asst. to the Director of PW, x8098. GROUND AND WATER TOWER LEASE AGREEMENT SITE ID: TX- DAL0092 THIS GROUND AND TOWER LEASE AGREEMENT ( "Lease ") is entered into as of this . day of , 2009, by and between City of Southlake, Texas, a municipal corporation ( "LESSOR ") and Clear Wireless LLC, a Nevada limited liability company, "LESSEE "). In consideration of the premises and of the mutual obligations and agreements in this Lease, the parties agree as follows: THE PROPERTY A. LESSOR is the titleholder of that certain real property commonly known as the Elevated Water Tower, ( "Bicentennial Water Tower ") at 400 N. White Chapel Blvd, City of Southlake, County of Tarrant, State of Texas ("LESSOR'S Property ") which is described on the attached Exhibit "Al." The parties agree that the legal description of LESSOR'S Property may be attached as Exhibit "Al" after execution of this Lease. B. LESSEE hereby desires to lease a portion of LESSOR'S Property containing approximately 10 x 20 square feet (the "Ground Premises ") and a certain portion of the elevated water storage tank ( "Tower ") located on LESSOR'S Property, together with obtaining a right of access and a right to install utilities (the "Property") at such locations as previously agreed to and approved by LESSOR and as set forth in Exhibit "A2 '. The Property and landscaping requirements, including any fencing, are to be determined by the LESSOR. In addition, LESSEE shall have the right to run cables and wires under, over and across LESSOR'S Property to connect LESSEE'S equipment on the Tower to its equipment in its facility located on the Property as approved by LESSOR, LESSEE may park its vehicles on LESSOR'S Property when LESSEE is constructing, removing, replacing, and/or servicing its communications facility. C. LESSEE covenants and agrees that it has inspected the Tower and the Property and that it does not rely on any representation of LESSOR as to the condition of the Property or Tower or their suitability for the purpose and uses herein intended. D. LESSOR and LESSEE further agree that the Property (including an access right -of -way thereto but excluding the space on the Tower) may be surveyed by a licensed surveyor at the sole cost of LESSEE, and such survey shall then replace Exhibit "AT' and become a part hereof and shall control to describe the Property in the event of any discrepancy between such survey and the description contained in Paragraph I.B. above. 2. LEASE AND EASEMENT LESSOR leases the Property to LESSEE and grants to LESSEE a non - exclusive easement (during the term of this Lease) to access the Property (seven [7] days a week, twenty -four [24] hours a day) and to install, remove, replace, and maintain utility cables, conduits and pipes, at such locations as mutually agreed to and as depicted in Exhibit "A2 ", from the Property to the appropriate source of electric and telephone facilities. Page I of 19 3. OPTION, TERM AND RENT A. This Lease shall be for an initial term of five (5) years beginning on the ( "Commencement Date ") at an Annual Rent of Thirty thousand one hundred twenty dollars ($30,120), which rent shall be paid annually, in advance, beginning on the Commencement Date and on each anniversary thereof (partial years prorated) to LESSOR or as LESSOR may otherwise direct from time to time in writing at least thirty (30) days before any rent payment date. The Commencement bate shall be the date of the last signature to this Lease. B. LESSEE shall pay LESSOR a late payment charge equal to five percent (5 %) of the late payment for any payment not paid within ten (10) days of when due. In addition to the late payment charge, any amounts not paid within ten(10) days of when due shall bear interest until paid at the lesser of the rate of one and three quarters percent (1'/4 %) per month or the highest rate permitted by law. C. LESSEE is granted options to extend this Lease on these same terms and conditions for four (4) additional five (5) year extension period(s) after the original term expires. This Lease shall automatically be extended for the next extension period at the end of the then- current term subject to the termination requirements in Section 5. D. The Annual Rent shall be increased on the first day of each anniversary (yearly) by an amount equal to three percent (3 %) of the Rent in effect during the previous year. E. Should this Lease still be in effect at the conclusion of all the extension periods provided for herein, this Lease shall continue in effect upon the same terms and conditions [other than Annual Rent which shall be an amount equal to the Annual Rent in effect for the prior one (1) year period, increased by Paragraph 3.13. above for a further period of one (1) year, and for like annual periods. thereafter, until and unless terminated by either party by giving to the other at least six (6) months written notice of its intention to so terminate before the date this Lease expires. 4. USE OF THE PROPERTY A. LESSEE may only use the Property for the operation of a Communications Facility, including, without limitation, required LESSEE antenna array and antenna support structures as set forth in the Exhibit A -3 to this Agreement, and for the purpose of any construction, removal, replacement, maintenance, security and operation of said Communications Facility. LESSEE shall not use or permit the Property to be used for any purposes other than described above without the written consent of LESSOR, which consent will not be unreasonably withheld, conditioned or delayed. B. 1. This Lease authorizes the LESSEE, subject to Subsection 3 below, to install the antenna and equipment on the Tower shown on Exhibit "A3 ". LESSEE may not add additional equipment or antennas from that shown on Exhibit "A3" without the approval of LESSOR and satisfaction with all FCC and /or Federal Aviation Administration rules. For each additional antenna installed by LESSEE beyond the size of the initial array described in Exhibit "A3 ", LESSEE shall pay additional rent of $250 per month which shall increase annually under the same terms provided in Section 3.D. and shall become part of the Rent. 2. LESSEE may add equipment to the interior of the LESSEE'S building on the ground so long as the equipment is permitted under this Lease and LESSEE complies with all applicable laws, regulations and rules. LESSEE shall not make any modification to the Ground Premises outside the building without LESSOR'S written consent, which consent will not be unreasonably withheld, conditioned or delayed so long as LESSEE's modifications comply with all applicable laws, rules and regulations. Page 2 of 19 3. Any improvement of the Property to meet LESSEE'S needs shall be at LESSEE'S sole expense, and LESSEE shall maintain such improvements to the Property in a reasonable condition throughout the term. 4. LESSEE shall not commence improvements or modifications to the Property or the Tower unless LESSOR has approved the plaus and the contractor performing the work. Further, LESSEE agrees that it will not hire or use any contractor to perform work on the Property or Tower unless the following requirements are met: a. the LESSOR approves the contractor; b. LESSEE pays for any overtime pay to LESSOR'S employees necessitated by the work and c. should LESSOR elect to have the invoice for the work sent to LESSOR, LESSEE reimburses the LESSOR for the cost of the work within 10 days of receipt of the invoice. C. LESSOR acknowledges that LESSEE'S ability to use the Property for its intended purposes is contingent upon LESSEE'S obtaining and maintaining, both before and after the Commencement Date, all of the certificates, permits, licenses and other approvals (collectively, "Governmental Approvals ") that may he required by any federal, state or local authority for the foregoing uses and improvements to the Property desired by LESSEE. LESSOR shall cooperate with LESSEE in LESSEE'S .efforts to obtain such Governmental Approvals and shall take no action that would knowingly or intentionally adversely affect LESSEE'S obtaining or maintaining such Governmental Approvals, so long as LESSEE is in compliance with applicable provisions of federal, state, and local Taws and regulations. D. Nothing in this Lease shall preclude LESSOR from leasing other space for communications equipment to any person or entity including a party which may be in competition with LESSEE. Lease of other space for communications equipment or radio transmission will he in accordance with Section 18 of this Lease. E. The parties understand and agree that the primary function of the property is to serve as a water tower for the LESSOR and that the interests of LESSEE are superseded by the public.health, safety, and welfare of the citizens of Southlake served by the Water Tower. In the event that the Southlake City Council or the Southlake City Manager declares a public emergency or if there exists a threat to the Water Tower facilities or potable water supply that would detrimentally impact public health, safety and welfare such that immediate action is necessary, LESSEE shall promptly remove its improvements from the Leased Premises. In the event LESSEE is not able to promptly respond, LESSOR may remove LESSEE'S improvements without incurring liability for damages of any type. Costs of removal and reattachment of improvements shall be borne by LESSEE. 5. TERMINATION A. Provided LESSEE is not in default hereunder, if any of the following occurs, LESSEE shall have the right to immediately terminate this Lease by giving written notice to LESSOR of such tennination. 1. LESSEE determines, in its sole discretion, that it will be unable to obtain all necessary Governmental Approvals for LESSEE intended use of and improvements to the Property desired by LESSEE or that it will be too time consuming or expensive to obtain such Governmental Approvals; or 2. LESSEE'S application for any Governmental Approvals necessary for LESSEE'S use of the Property and improvements desired by LESSEE'S is denied; or 3. Any Governmental Approvals necessary for LESSEE'S use of the Property Page 3 of 19 and /or improvements to the Property, whether now or hereafter desired by LESSEE, are canceled, expired, lapsed or are otherwise, terminated or denied so that LESSEE, in its reasonable judgment, determines that it will no longer be able to use the Property for LESSEE'S intended use; or 4. The Federal Communications Commission allocates the frequencies at which LESSEE may operate its antennas and equipment and may from time to time change such frequencies. Any change of this nature that, in LESSEE'S reasonable judgment, renders its operation of a wireless communications facility at the Property obsolete; or 5, If LESSEE determines that the Property has become unsuitable for LESSEE'S operations due to changes in system or network design or in the types of equipment used in such operations or LESSEE'S operations at the Property become unprofitable; provided however, for a termination for such purpose to become effective, LESSEE shall tender one (1) year of rental payments at the then rate in effect with LESSEE'S notice to LESSOR to terminate for this reason; or 6. If LESSOR commits a breach of this Lease and fails to cure such breach within thirty (30) days after notice of the breach and requests to cure from LESSEE. B. Provided LESSOR is not in default hereunder and shall have paid all rents and sums due and payable to LESSOR by LESSEE, LESSOR shall have the right to terminate this Lease at any time after five (5) years from execution of this Lease upon one (1) year prior written notice to LESSEE. In addition and :provided LESSEE is not in default hereunder and shall have paid all rents and sums due and payable to LESSOR by LESSEE, LESSEE shall have the right to terminate this lease at any time after five (5) years from execution of this Lease upon one(1) year prior written notice to LESSOR. C. Notwithstanding anything herein to the contrary, any breach, default or failure by LESSEE to perform any of the duties or obligations assumed by LESSEE under this Lease, or to faithfully keep and perform any of the terms, conditions and provisions hereof, shall be cause for termination of this Lease by LESSOR in the manner set forth in this Paragraph. LESSOR shall deliver to LESSEE ten (10) days prior written notice of its intention to terminate this Lease, including in such notice a reasonable description of the breach, default or failure. If LESSEE shall fail or refuse to cure, adjust or correct the breach, default or failure within said ten (10) days written notice to LESSEE to terminate this Lease. Upon termination of this Lease, all rights, powers and privileges of LESSEE hereunder shall cease and terminate and LESSEE shall, within thirty (30) days, vacate the Property and remove all of its improvements, fixtures and equipment. In the event LESSEE does not vacate the Property within said period, LESSOR may, without being deemed guilty of trespass, and without any liability whatsoever on the part of LESSOR, enter upon and take full possession of the Property and remove any and all improvements, fixtures and equipment not belonging to LESSOR that may be found upon the Property without being liable for damages. D. Any termination notice rendered by LESSEE or LESSOR pursuant to this Paragraph shall cause this Lease to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Lease and the parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under this Lease. 6. ASSIGNMENT AND SUBLETTING A. LESSEE shall not assign this Lease, or allow it to be assigned, in whole or in part, by operation of law or otherwise or mortgage or pledge the same, or sublet the Property, or any part thereof, without the prior written consent of LESSOR except as follows: LESSEE will have the right to assign, sell or transfer its interest under this Agreement to LESSEE'S parent company or any affiliate or subsidiary of, or partner in, LESSEE or its parent company or to any entity which acquires all or substantially all of the LESSEE'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. In such event, LESSEE Page 4 of 19 shall provide at least 60 days' notice to LESSOR of such assignment, transfer or sale. Such assignment, sale or transfer will not become effective unless the assignee or purchaser agrees in writing, approved by the LESSOR, to accept and be bound by the conditions and obligations imposed upon LESSEE under this Lease Agreement. LESSEE may not otherwise assign this Agreement without LESSOR'S consent, LESSOR'S consent not to be unreasonably withheld, conditioned or delayed, B. No consent by LESSOR to any assignment or sublease by LESSEE shall relieve LESSEE of any obligation to be performed by LESSEE under this Lease, whether arising before or after the assignment or sublease. The consent by LESSOR to any assignment or sublease shall not relieve LESSEE from the obligation to obtain LESSOR'S express written consent to any other assignment or sublease and any assignment shall not become effective unless the assignee agrees in writing to be bound by the obligations imposed upon Lessee by this Agreement. C. Any sale or other transfer, including by consolidation, merger or reorganization, of a majority of the voting stock of LESSEE, if LESSEE is a corporation, or any sale or other transfer of a majority in interest (whether of profits, losses, capital or voting power) or a majority of the persons composing the managers of the partnership, if LESSEE is a partnership, shall not be an assignment for purposes of this Paragraph 6. FIRE OR OTHER CASUALTY A. LESSEE shall immediately notify LESSOR of any and all damages resulting from, arising out of, or caused to the Property and LESSOR'S property surrounding the Property, including but not limited to structural damages, electrical damages, damages to fencing, irrigation systems or landscaping by LESSEE'S operations, and /or by LESSEE, its officers, agents, employees and invitees. LESSEE shall be solely responsible for the costs and the repair of all such damages and such repairs and /or replacements shall be completed in a timely manner acceptable to LESSOR. B. If the Tower, or access to it, is damaged or destroyed by a casualty, LESSOR shall deliver written notice to LESSEE within twenty (20) days after receipt of notice from LESSOR'S insurance company, which notice from LESSOR sets forth LESSOR'S election (a) not to repair, restore and/or reconstruct the Tower, or (b) to repair, restore and/or reconstruct the Tower. If, as a result of any such casualty, the Property becomes totally or partially unusable by LESSEE, rent shall abate during the period of repair in the same proportion to the total rent as the portion of the Property rendered unusable bears to the entire Property. If LESSOR elects to repair, then LESSOR shall promptly commence appropriate repairs (to be diligently prosecuted to completion entirely at LESSOR'S expense), and this Lease shall continue in full force and effect, C. Notwithstanding anything contained herein to the contrary, LESSOR is under no duty or obligation to repair the Tower in a manner that would accommodate LESSEE'S equipment or antenna array. In the event that following repairs, the Tower is no longer suitable for LESSEE'S intended use, LESSEE'S sole remedy shall be to terminate this Lease. D. If LESSOR (a) undertakes the repair, restoration and /or reconstruction of the Tower or of any access thereto but fails to complete such repair, restoration, and /or reconstruction within forty -five (45) days after the casualty, or (b) notifies LESSEE of LESSOR'S intention not to repair, restore and /or reconstruct the Tower, or fails to deliver to LESSEE the written notice required under Paragraph 7.13. within twenty (20) days, then LESSEE may immediately cancel this Lease by giving written notice of its election to cancel to LESSOR. 8. INDEMNIFICATION AND INSURANCE A. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF INDEMNITEES, LESSEE SHALL, AT ITS SOLE COST AND EXPENSE, INDEMNIFY AND HOLD HARMLESS LESSOR AND ALL ITS OFFICERS, BOARDS, COMMISSIONS, EMPLOYEES, AND AGENTS (HEREINAFTER REFERRED TO AS "INDEMNITEES "), FROM Page 5 of 19 AND AGAINST: I. ANY AND ALL LIABILITY, OBLIGATIONS, DAMAGES, PENALTIES, CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY ACT OR OMISSION OF LESSEE, ITS PERSONNEL, EMPLOYEES, AGENTS, CONTRACTORS OR SUBCONTRACTORS, RESULTING IN PERSONAL INJURY, BODILY INJURY, SICKNESS, DISEASE OR DEATH TO ANY PERSON OR DAMAGE TO, LOSS OF OR DESTRUCTION OF TANGIBLE OR INTANGIBLE PROPERTY, LIBEL, SLANDER, INVASION OF PRIVACY AND UNAUTHORIZED USE OF ANY TRADEMARK, TRADE NAME, COPYRIGHT, PATENT, SERVICE MARK OR ANY OTHER RIGHT OF ANY PERSON, FIRM OR CORPORATION, WHICH MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH LESSEE'S CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE, USE OR CONDITION OF THE PROPERTY OR LESSEE'S FACILITIES OR THE LESSEE'S FAILURE TO COMPLY WITH ANY FEDERAL, STATE OR LOCAL STATUTE, ORDINANCE OR REGULATION. 2. ANY AND ALL LIABILITIES, OBLIGATIONS, DAMAGES, PENALTIES, CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES (INCLUDING ; WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS), WHICH ARE IMPOSED UPON, .INCURRED BY OR ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY CLAIM OR LIEN ARISING OUT OF WORK, LABOR, MATERIALS OR SUPPLIES PROVIDED OR SUPPLIED TO LESSEE, ITS CONTRACTORS. OR SUBCONTRACTORS, FOR THE INSTALLATION, CONSTRUCTION, OPERATION, MAINTENANCE OR USE OF THE PROPERTY OR LESSEE'S ANTENNA FACILITIES, AND, UPON THE WRITTEN REQUEST OF LESSOR, LESSEE SHALL CAUSE SUCH CLAIM OR LIEN COVERING LESSOR'S PROPERY TO BE DISCHARGED OR BONDED WITHIN 30 DAYS FOLLOWING SUCH REQUEST. B. IT IS.THE INTENT OF THE PARTIES BY AGREEMENT TO THIS SECTION 8 THAT IF A CLAIM 'IS MADE IN ANY FORUM AGAINST INDEMNITEES FOR ANY OF THE REASONS REFERRED TO IN SECTION 8, AND UPON RESOLUTION OF THE CLAIM: I) THERE IS NO FINDING BY A COURT OF COMPETENT JURISDICTION THAT INDEMNITEES WERE NEGLIGENT IN CONNECTION WITH ANY OF THE REASONS REFERRED TO IN SECTION 8, LESSEE SHALL HOLD INDEMNITEES HARMLESS AND INDEMNIFY THEM FOR ANY DAMAGE, LOSS, EXPENSE, OR LIABILITY RESULTING FROM THE CLAIM, :INCLUDING ALL ATTORNEY'S FEES, COSTS, AND PENALTIES INCURRED; OR 2. THERE IS A FINDING BY A COURT OF COMPETENT JURISDICTION THAT LESSEE WAS 'NEGLIGENT TO A GREATER DEGREE THAN INDEMNITEES IN CONNECTION WITH ANY OF THE REASONS REFERRED TO IN SECTION 8, LESSEE SHALL HOLD INDEMNITEES HARMLESS AND INDEMNIFY THEM FOR ANY DAMAGE, LOSS, OR LIABILITY RESULTING FROM THE CLAIM, INCLUDING ALL ATTORNEY'S FEES, COSTS AND PENALTIES. C. In the event any action or proceeding shall be brought against the Indemitees by reason of any matter for which the Indemnitees are indemnified hereunder, LESSEE shall, upon notice from any of the Indemnitees, at LESSEE'S sole cost and expense, resist and defend the same; provided however, that LESSEE shall not admit liability in any such matter on behalf of the Indemnitees without the written consent of LESSOR and provided further that Indemnitees shall not admit liability for, nor enter into any compromise or settlement of, any claim for which they are indemnified hereunder, without the prior written consent of LESSEE. Page 6 of 19 D. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY, E. LESSOR shall give LESSEE prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Lease. Nothing herein shall be deemed to prevent LESSOR from cooperating with LESSEE and participating in the defense of any litigation by LESSOR'S own counsel at its own expense. F. LESSEE shall pay all expenses incurred by LESSOR 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 LESSOR'S attorney, and the actual expenses of LESSOR'S agents, employees or expert witnesses, and disbursements and liabilities assumed by LESSOR in connection with such suits, actions or proceedings but shall not include attorneys fees for services that are unnecessarily duplicative of services provided LESSOR by LESSEE. G. The indemnifications in this section shall survive the termination of this Lease. H. Without limiting any of the other obligations or liabilities of the LESSEE, during the term of the Agreement, the LESSEE shall purchase and maintain the following minimum insurance coverage with companies duly approved to do business in the State of Texas. LESSOR has the right to reasonably adjust these minimum insurance coverages during any renewal of this Lease Agreement by notifying LESSEE in writing. The adjusted coverage requirements shall become effective sixty (60) days after.. notification by LESSOR. Coverage shall be of the following types and not less than the specified amounts: 1. Worker's compensation as required by Texas law, with the policy endorsed to provide a waiver of subrogation as to the LESSOR; employer's liability insurance of not less than One Million Dollars ($1,000,000.00). 2. Commercial general liability insurance, including premises operations; LESSEE'S independent contractors' liability, completed operations and contractual liability covering, but not limited to, the liability assumed under the indemnification provisions of this Agreement, fully insuring LESSEE'S (or SubLESSEE'S) liability for injury to or death of LESSOR'S employees and third parties, extended to include personal injury liability coverage with damage to property of third parties, broad form property damage, with minimum limits as set forth below: General Aggregate $2,000,000 Bodily Injury $1,000,000 each occurrence Property Damage $1,000,000 each occurrence or $2,000,000 combined single limit coverage for bodily injury and property damage. Products - Components /Operations Aggregate Personal & Advertising Injury (With Employment Exclusion Deleted) Contractual Liability: Bodily Injury Property Damage $1,000,000 $1,000,000 each occurrence $1,000,000 each occurrence $1,000,000 each occurrence or $2,000,000 combined single limit coverage for bodily injury and property damage, Page 7 of 19 The policy shall include coverage extended to apply to completed operations, asbestos hazards (if this project involves work with asbestos) and ECU (explosion, collapse and underground) hazards. The completed operations must be maintained for a minimum of one year after final completion of any construction project during the term of this Agreement, with evidence of same filed with LESSOR. 3. Comprehensive automobile and truck liability insurance, covering owned, hired and non -owned vehicles, with a combined bodily injury and property damage minimum limit of $1,000,000 per occurrence; or separate limits of $500,000 for bodily injury (per person) and $500,000 for property damage. Such insurance shall include coverage for loading and unloading hazards, Property Insurance (Builder's All Risk). R. LESSEE shall purchase and maintain, at all times during the term, this Agreement property insurance written on a builder's risk "all- risk" or equivalent policy form in the amount of the initial contract price, plus value of subsequent contract modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made or until no person or entity other than the LESSOR has an insurable interest in the property required by this paragraph to be covered, whichever is later, This insurance shall include interests of the LESSOR, the LESSEE, SubLESSEEs and Sub- SubLESSEEs in the Project. b. Property insurance shall be on an "all- risk" or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, false work, testing and startup, temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for LESSEE'S services and expenses required as a result of such insured loss. C. If the insurance required by this paragraph requires deductibles, the LESSEE shall pay costs not covered because of such deductibles. d. This property insurance shall cover portions of the Work stored off the site, and also portions of the Work in transit. 5. Policy Endorsements: Each insurance policy to be furnished by LESSEE shall include the following conditions by endorsement to the policy: a. Name the LESSOR as an additional insured, as to all applicable policies, i.e., general and automobile liability coverage. b. Each policy shall require that 30 days prior to cancellation, non - renewal or any material change in coverage, a notice thereof shall be given to LESSOR by certified mail. If the policy is cancelled for nonpayment of premium, only 10 days written notice to LESSOR is required. C. The term "LESSOR" shall include all authorities, boards, bureaus, commissions, divisions, departments and officers of the LESSOR and individual members, employees and agents thereof in their official capacities, and/or while acting on behalf of the LESSOR. Page 8 of 19 d. The policy phrase "other insurance" shall not apply to the LESSOR where the LESSOR is an additional insured on the policy. All plans shall be primary and non- contributary. The City's other insurance will be excess coverage and shall not contribute to the primary coverage. 6. Special Conditions a. Insurance furnished by the LESSEE shall be in accordance with the following requirements: i, Any policy submitted shall not be subject to limitations, conditions or restrictions deemed inconsistent with the intent of the insurance requirements to be fulfilled by LESSEE. ii. All policies are to be written through companies duly licensed to transact that class of insurance in the State of Texas. iii. All liability policies required herein shall be written with an "occurrence" and not on a claims made basis and shall name the City, its officers and employees as additional insureds by using endorsement CG 20 26 or broader. All insurance carriers and surplus carriers shall be rated A+ or better by A.M. Best Company. b. LESSOR and LESSEE agree to the following: i. LESSOR and LESSEE, respectively, each hereby waive all subrogation rights for loss or damage to the extent same are covered by insurance. Insurers shall have no right'.of recovery or subrogation against the LESSOR and LESSEE, it being the parties' intention that the insurance policies shall protect all parties to the contract and be. primary coverage for all losses covered by the policies; H. Companies issuing the insurance policies and LESSEE shall have no recourse against the LESSOR for payment of any premiums or assessments for any deductibles, as all such premiums and deductibles are the sole responsibility and risk of the LESSEE; iii. Approval, disapproval or failure to act by the LESSOR regarding any insurance supplied by the LESSEE (or any SUbLESSEEs or contractors) shall not relieve the LESSEE of full responsibility or liability for damages and accidents as set forth in this Agreement. Neither shall be bankruptcy, insolvency or denial of liability by the insurance company exonerate the LESSEE from liability; iv. Any of such insurance policies required under this paragraph may be written in combination with any of the others, where legally permitted, but none of the specified limits may be lowered thereby; V. Prior to commencement of operations pursuant to this Agreement, the LESSEE shall furnish the LESSOR with satisfactory proof that LESSEE has provided adequate insurance coverage in amounts and by approved carriers as required by this Agreement; vi. LESSEE shall provide notice of any actual or potential claim or litigation that would affect required insurance coverage to the LESSOR in a timely manner; Page 9 of 19 vii. LESSEE agrees to either require its SubLESSEEs to maintain the same insurance coverage and limits as specified for the LESSEE. Likewise, LESSOR shall provide notice of any actual or potential claim or litigation that would affect required insurance coverage to the LESSEE in a timely manner; and viii. Prior to the effective date of cancellation, LESSEE shall deliver to the LESSOR a replacement certificate of insurance or proof of reinstatement. 9. UTILITIES A. LESSEE shall be responsible directly to the serving entities for all utilities required by LESSEE'S use of the Property; however, LESSOR agrees to cooperate with LESSEE in its efforts to obtain utilities from any location provided by the LESSOR or the servicing utility. Should electric power be provided by LESSOR, LESSEE will install an electric meter and LESSEE'S usage shall be read by LESSOR or, at LESSOR'S option, by LESSEE, on an annual basis and the cost of electricity used by LESSEE shall be paid by LESSEE to LESSOR annually as a payment separate from rent and shall be computed at the then - current public utility rate. B. Should a power outage occur so that LESSEE is unable to operate using power from the electric utility, LESSEE may operate with an electric generator, but only until electric utility power is restored to the site. . 10. RIGHTS TO EQUIPMENT; CONDITION ON SURRENDER LESSEE'S antennas And equipment shall remain personal to and the property of LESSEE. At the termination or expiration of this Lease, if notice is received from LESSOR, LESSEE shall remove its antennas and /or equipment. LESSEE shall repair any damage caused by such removal, and shall otherwise surrender the Property at the expiration of the term, as same may have been extended, or earlier termination thereof, in good condition, ordinary wear and tear, damage by fire and other casualty excepted. Any of LESSEE'S equipment or other property that has not been removed from the Property within thirty (30) days from the time of Lease termination shall be deemed abandoned by LESSEE and LESSOR shall be free to dispose of the same in any manner LESSOR chooses and without any liability to LESSEE therefore. 11. LESSEE DEFAULTS A. The occurrence of any one or more of the following events shall constitute an "Event of Default" hereunder by LESSEE; 1. The failure by LESSEE to make any payment of rent or any other payment required to be made by LESSEE hereunder, as and when due, where such failure shall continue for a period of twenty (20) days after written notice thereof is received by LESSEE from LESSOR. 2. The failure by LESSEE to observe or perform any of the covenants or provisions of this Lease to be observed or performed by LESSEE, other than specified in Paragraph 11. A. (1), where such failure shall continue for a period of twenty (20) days after written notice thereof is received by LESSEE from LESSOR; provided however, that it shall not be deemed an Event of Default by LESSEE if LESSEE shall commence to cure such failure within said ten (10) days period and thereafter diligently prosecutes such cure to completion. B. If there occurs an Event of Default by LESSEE, in addition to any other remedies available to LESSOR at law or in equity, LESSOR shall have the option to terminate this Lease and all rights of LESSEE hereunder. Page 10 of 19 12. NOTICES All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, postage prepaid, addressed as shown below (or to any other address that the party to be notified may have designated to the sender by like notice): LESSEE: Clear Wireless LLC, aNevada limited liability company. Attn: Legal Dept. Address: 4400 Carillon Point Kirkland, WA 98033 Telephone Number: 866 -316 -7575 LESSOR: The City of SOUTHLAKE, Texas, a municipal corporation Attn: City Manager Address: 1400 Main Street Suite 460 Southlake, Texas 76092 Telephone Number: (817)748 -8057 13. SALE OR TRANSFER BY LESSOR Should LESSOR, at any time during the term of this Lease, sell, lease, transfer or otherwise convey all or .any part of LESSOR'S.Property to any transferee other than LESSEE, then such transfer shall be under and subject to this Lease and all of LESSEE'S rights hereunder. 14. HAZARDOUS SUBSTANCES A. LESSOR warrants that to its knowledge, as of the Commencement Date, there are no hazardous materials, as that term is defined in Environmental Regulations, on the Property. Upon request, LESSOR shall make available to LESSEE copies of all environmental assessments regarding the Property. B. LESSEE represents, warrants, and covenants to LESSOR that LESSEE shall at no .time during the term of this Lease Agreement use or permit the Property to be used in violation of any Environmental Regulations. LESSEE will not exercise any control over environmental conditions or any activities, under this Agreement, at or near the Property that involve the generation, storage, treatment, or disposal of any hazardous substance, material, chemical or waste, except for the use of a generator, batteries or solvents and chemicals as are commonly used in the ordinary course of LESSEE'S business which shall be used in a manner which.does not violate any Environmental Regulations. C. LESSEE agrees to defend, indemnify and hold LESSOR harmless from and against any and all claims, causes of .action, demands and liability including, but not limited to, damages, costs, expenses, assessments, penalties, fines, losses, judgments and attorney's fees that LESSOR may suffer due to the existence or discovery of any Hazardous Substance on the LESSOR'S Property or the migration of any Hazardous Substance to other properties or released into the environment to the extent such Hazardous Substances result from LESSEE'S activities on the Property during the term of this Lease. D. LESSEE and LESSOR also agree that LESSEE'S use of the Property will not involve the subsurface, except for the placement of a foundation for LESSEE'S equipment and the necessary utility connections from the foundation to the Tower. E. For the purposes of this Section, the term "Environmental Regulations" shall mean any law, statute, regulation, order or rule now or hereafter promulgated by any Governmental Authority, whether local, state or federal, relating to air pollution, water pollution, noise control and/or transporting, Page 11 of 19 storing, handling, discharge, disposal or recovery of on -site or off-site hazardous substances or materials, as same may be amended from time to time, including without limitation the following: (i) the Clean Air Act (42 U.S.C. § 7401 et seq.); (ii) Marine Protection, Research and Sanctuaries Act (33 U.S.C. § 1401- 1445); (iii) the Clean Water Act (33 U.S.C. § 1251 et seq.); (iv) Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. § 6901 et seq.); (v) Comprehensive Environmental Response Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601 et seq.); (vi) Toxic Substances Control Act (15 U.S.C. § 2601 et seq.); (vii) the Federal Insecticide, Fungicide and Rodenticide Act as amended (7 U.S.0 § 135 et seq.); (viii) the Safe Drinking Water Act (42 U.S.C. § 300 (f) et seq.); (ix) Occupational Health and Safety Act (29 U.S.C. § 651 et seq.); (x) the Hazardous Liquid Pipeline Safety Act (49 U.S.C. § 2001 et seq.); (xi) the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.); (xii) the Noise Control Act of 1972 (42 U.S.0 § 4901 et seq.); (xiii) Emergency Planning and Community Right to Know Act .`(42 U.S.0 §§ 11001- 11050); and (xiv) the National Environmental Policy Act (42 U.S.0 §§ 4321- 4347). F. NOTWITHSTANDING THE PROVISIONS OF SECTION 14, IT IS THE INTENT OF THE PARTIES THAT IF A CLAIM IS MADE IN ANY FORUM AGAINST INDEMNITEES CONCERNING THE GENERATION, RELEASE, DISPOSAL, STORAGE, OR TRANSPORTATION OF A HAZARDOUS SUBSTANCE OR MATERIAL, AS THOSE TERMS ARE DEFINED IN "ENVIRONMENTAL REGULATIONS ", ON THE PROPERTY BY LESSEE, ITS AGENTS, EMPLOYEES, OR CONTRACTORS, AND UPON RESOLUTION OF THE CLAIM: 1. THERE IS NO FINDING BY A COURT OF COMPETENT JURISDICTION THAT 1NDEMNITEES WERE NEGLIGENT IN CONNECTION WITH THE GENERATION, RELEASE, DISPOSAL, STORAGE OR TRANSPORTATION OF THE HAZARDOUS SUBSTANCE, LESSEE SHALL HOLD INDEMNITEES HARMLESS AND INDEMNIFY THEM FOR ANY DAMAGE, LOSS, EXPENSE, OR LIABILITY RESULTING FROM THE CLAIM, INCLUDING ALL ATTORNEYS' FEES, COSTS, AND PENALTIES INCURRED OR 2. THERE IS A FINDING BY A COURT OF COMPETENT JURISDICTION THAT LESSEE WAS NEGLIGENT TO A GREATER DEGREE THAN INDEMNITEES IN CONNECTION WITH THE GENERATION, RELEASE, DISPOSAL, STORAGE, OR TRANSPORTATION OF THE HAZARDOUS SUBSTANCE, LESSEE SHALL HOLD INDEMNITEES HARMLESS AND INDEMNIFY THEM FOR ANY DAMAGE, LOSS, EXPENSE, OR LIABILITY RESULTING FROM THE CLAIM, INCLUDING ALL ATTORNEYS' FEES, COSTS, AND PENALTIES INCURRED. G. This Section shall survive the expiration or termination of this Agreement. 15. CONDEMNATION A. In the event the whole of LESSOR'S Property, including without limitation the Property and Tower, shall be taken or condemned, either temporarily or permanently, for public purposes, or sold to a condemning authority under threat of condemnation to prevent taking, then this Lease shall forthwith automatically cease and terminate. B. In the event any portion of the Property, including without limitation the Tower, shall be taken or condemned, either temporarily or permanently, for public purposes, or sold to a condemning authority under threat of condemnation to prevent taking, then LESSOR agrees that LESSEE may use and /or construct upon an alternative portion of LESSOR'S Property which is equally suitable for LESSEE'S purposes, provided such space is available. The exact site to which LESSEE may relocate will be determined by LESSOR, and it may be upon any portion of LESSOR'S Property (or other property owned or controlled by LESSOR) provided that LESSEE reasonably approves the site as equally suitable for LESSEE'S intended uses. LESSOR will designate a site to which LESSEE may relocate prior to the taking, condemnation or sale. In the event no alternative portion of the LESSOR'S Property is equally suitable for the purposes of LESSEE, then LESSEE may terminate this Lease. Page 12 of 19 C. LESSOR shall receive the entire condemnation award for land, Tower and such other improvements as are paid for by LESSOR, and LESSEE hereby expressly assigns to LESSOR any and all right, title and interest of LESSEE now or hereafter arising in and to any such award. LESSEE shall have the right to recover from such authority but not from LESSOR, any compensation as may be awarded to LESSEE on account of the leasehold interest of LESSEE now or hereafter arising in and to any such award. LESSEE shall have the right to recover from such authority, but not from LESSOR, any compensation as may be.awarded to LESSEE on account of the leasehold interest, moving and relocation expenses, and deprecation to and removal of the personal property and fixtures of LESSEE. IS��J 1J►`f�`1 LESSEE shall keep the Property free from any liens arising out or any work performed, materials furnished, or obligations incurred by or for LESSEE. LESSEE shall, within twenty (20) days following the imposition of any such lien, cause the same to be released of record by payment or posting of a proper bond. No work which LESSOR permits LESSEE to perform on the Property shall be deemed to be for the use and benefit of LESSOR so that no mechanics or other lien shall be allowed against the estate of LESSOR by reason of its consent to such work. LESSOR shall have the right to post notices that it is not responsible for payment for any such work. 17. TAXES LESSEE shall be liable for and shall pay to the applicable taxing authority if billed directly to LESSEE, or to LESSOR if billed to LESSOR, upon thirty (30) days .prior, written notice from LESSOR, any and all taxes; and assessments levied against any personal property or trade or other fixtures placed by LESSEE in or about the Property. LESSEE shall have the right to appeal such taxes and assessments. LESSEE .shall pay as additional rent any increases in real property taxes levied. against LESSOR'S Property, including the Tower, as a result of improvements constructed by LESSEE on the Property. LESSEE will not be responsible for any increases in real property taxes, which are a result of reassessment of LESSOR'S Property due to any sale or transfer of ownership thereof. LESSEE shall have the right to appeal such real property taxes. 18. QU1ET ENJOYMENT AND NON - INTERFERENCE A. LESSOR warrants and agrees that LESSEE, upon paying the rent and performing the covenants herein provided, shall' peaceably and quietly have and enjoy the Property. . B. LESSEE covenants and agrees that LESSEE'S equipment, its installation, operation and maintenance will: 1. Not interfere with the operation of existing radio .equipment at the Tower, whether operated by LESSOR or other operators prior to installation `of LESSEE'S antennas and/or transmission lines on the Tower. LESSEE shall coordinate with LESSOR and all other operators of existing radio equipment at the Tower to insure that LESSEE'S frequencies and antenna locations will be compatible with said existing radio equipment. In the event there is harmful interference to said electronic equipment, LESSEE will promptly take all steps to eliminate said harmful interference within ten (10) days after notice from LESSOR or such other operator to LESSEE advising of the interference. If said interference cannot be eliminated within thirty (30) days of notice thereof, LESSEE agrees to suspend operations (transmissions) at the site while the interference problems are studied and a means found to mitigate them. If said interference cannot be eliminated, then LESSEE shall remove its building and equipment from LESSOR'S Property and this Lease shall thereupon be terminated. In addition, in the event LESSOR desires to install its own additional radio equipment at the water tower site in the future, LESSEE agrees to work with LESSOR to eliminate any interference with said radio equipment. However, LESSEE shall not be required to eliminate interference on equipment installed after Page 13 of 19 LESSEE equipment is installed. However, in no event shall LESSEE be required to deactivate or move its antennas or equipment on the tower site or the equipment building. 2. During the term of this Lease or any extension thereof, LESSOR shall not permit other tenants, to place or operate any equipment, which would interfere with LESSEE'S equipment or operations on the LESSOR'S Property or Property. LESSOR shall cause that all subsequent tenants on the Tower to first coordinate with LESSEE to ensure that their frequencies and antenna locations will be compatible with LESSEE'S and to agree to a clause similar to this Section 18.13.(1) herein, promising to immediately eliminate harmful interference if said tenant's radio equipment should interfere with that of LESSEE herein. C. LESSEE, as well as LESSEE'S property, shall comply with all applicable rules and regulations of the Federal Communications Commission, state laws and Federal laws, City Ordinances and electrical codes of City of Southlake and for State of Texas. Under this Lease, the LESSOR assumes no responsibility for the licensing, operations and /or maintenance of LESSEE'S equipment, antennas, transmission lines or attachments. LESSEE shall, at its sole cost and expense, prepare and deliver to LESSOR, or cause to be prepared and delivered to LESSOR, an evaluation of the radio frequency emissions from the Tower site as required by the Federal Communications Commission, taking into consideration the addition of the LESSEE'S radio communications equipment. In the event the LESSEE determines that such radio communications equipment would cause the Tower site not to comply with the radio frequency exposure limits promulgated under 47.C.F.R. §1.1307, et. Seq. (1997, as amended from time to time), LESSOR at its sole discretion may modify or cause modifications of equipment or conditions on the Tower site in order to permit location of LESSEE'S radio communications equipment at Tower in compliance with the RF Emissions Regulations. If LESSOR elects not to effect such modifications, it shall so notify LESSEE, and LESSEE shall thereafter have the right to terminate the Lease by notice to LESSOR. LESSOR grants LESSEE the right to place electromagnetic energy warning signs proximate to its Communication Facility and radio communications equipment so long as such warning signs are in compliance with applicable law. 20. COORDINATION OF OPERATION A. LESSOR agrees (i) to use its diligent efforts to minimize inconvenience to LESSEE by using its diligent efforts not to cause or permit any interruption or interfere with the operations of LESSEE'S antennas or equipment, and (ii) to give LESSEE notice of any repairs, alterations, additions or improvements to be made with respect to the maintenance and operation of the Tower and the Property or of any planned shut downs associated with the Tower for scheduled or routine maintenance that might adversely affect the operation of LESSEE'S wireless communications facility, antennas or equipment at least thirty (30) days written notice before the repair, alteration, addition, improvement or shut down of the tower. B. Access to the interior of Tower or to the top of the Tower shall be accomplished only with the presence of the City's Public Works Operations Supervisor or his or her representative. Only qualified and adequately insured employees, agents, contractors or persons under LESSEE'S direct supervision will be permitted to climb the Tower and to install, maintain, or remove LESSEE'S antennas and/or equipment from the Tower. LESSOR retains the right to permit its own employees and agents and employees and agents of the subsequent users of the Tower to climb the Tower for the purpose of repair and maintenance or for any other purposes that do not interfere with LESSEE'S use of the Tower, and so long as LESSEE complies with the provisions of Section 18 of this Lease. C. LESSOR shall not permit any person, including without limitation any contractor, employee, agent, tenant, or invitee, to work within a ten (10) foot radius of LESSEE'S antennas unless LESSEE is notified, except in the case of an emergency, prior to such activity. LESSOR agrees to give Page 14 of 19 LESSEE reasonable advance written notice (except in the case of emergency where advance written notice cannot be reasonably given, in which event, LESSOR shall give LESSEE telephonic notice at (866) 316- 7575 of repairs, alterations, additions, or improvements to be made with respect to the maintenance and operation of the Tower and the Property within such radius of the antennas. D. In the event that LESSOR determines that any equipment or operation of LESSEE causes radio interference, as defined and regulated by the Federal Communications Commission, or interferes with the operation or use of the Tower or with any of LESSOR'S facilities or LESSOR'S equipment on the Tower, then LESSEE shall have thirty (30) days within which to correct such radio interference, pursuant to Section 18.B,. , unless such interference is with LESSOR'S emergency communications; then such interference shall be corrected immediately or terminated. E. It is further understood and agreed that LESSOR may perform reasonable routine maintenance, painting, etc. of the Tower without compensation or liability to LESSEE, even though such maintenance and painting may cause interference with LESSEE'S operations. LESSOR shall notify LESSEE at least sixty (60) days prior to any scheduled maintenance or painting on the Tower that will be likely to interfere with the operation of LESSEE'S equipment and allow LESSEE to construct and operate temporary facilities on LESSOR'S Property. LESSOR shall not be required to notify LESSEE prior to performing any emergency maintenance on the Tower. F. To the extent that any shut down, repair, alteration, addition or improvement of the Tower might adversely affect the operation of LESSEE'S Wireless Communications facility, antennas or equipment for a period in excess of fourteen (14) days, the rent shall be abated for the relevant time period during which LESSEE'S operations are adversely affected. 21. LIGHTING OF ANTENNAS LESSOR hereby agrees that, if because of LESSEE'S operations on the Property any laws or regulations of the Federal Aviation Administration, Federal Communications Commission or any other relevant governmental agency or body require or recommend that LESSEE'S antennas and/or the Tower be lit and/or marked, LESSEE may install and maintain such lighting and markings. In no event, however, shall LESSEE be responsible for the installation or maintenance of any lighting or markings required by the operations of LESSOR or any other tenant in the Tower. LESSOR will permit LESSEE access to all portions of the Tower that LESSEE may need in order to check and replace such required or recommended lighting or marking. 22. BROKERS LESSOR and LESSEE represent to each other that they have not negotiated with any real estate broker in connection with this Lease. 23. ESTOPPEL CERTIFICATES A. LESSOR, at the request of LESSEE, shall provide LESSEE with a certificate stating: (1) whether LESSOR has any claim against LESSEE and if so, stating the nature of such claim; (2) that LESSOR recognizes LESSEE'S right to LESSEE'S antennas, equipment and other property; (3) that LESSEE has the right to remove LESSEE'S equipment and other property from the Property notwithstanding that same may be considered a fixture under local law; and (4) that LESSOR has no interest in and disclaims any interest to LESSEE'S equipment and other property. B. LESSEE, at the request of LESSOR, shall provide LESSOR with a certificate stating: (1) that this Lease is unmodified and in full force and effect (or, if there has been any modification, that the same is in full force and effect as modified and stating the modification); (2) whether or not, to LESSEE'S knowledge, there are then existing any set -offs, or defenses against the enforcement of any of the agreements, terms, covenants or conditions hereof upon the part of LESSEE to be performed or complied with (and, if so specifying the same); and (3) the dates, if any, to which the rent has been paid in advance. Page 15 of 19 24. MISCELLANEOUS PROVISIONS A. This Lease is not a franchise. This agreement does not prevent the LESSOR from seeking to implement a franchise on LESSEE, but LESSEE does not acknowledge that the LESSOR has a right to franchise LESSEE or waive any right it might have to contest a franchise, B. LESSOR warrants and agrees that LESSOR is seized of good and sufficient title to and interest in the Property and has full authority to enter into and execute this Lease and that there are no undisclosed liens, judgments or impediments of title on LESSOR'S Property that would affect this Lease. C. This Lease, including attached exhibits which are hereby incorporated by reference, incorporates all agreements and understandings between LESSOR and LESSEE, and no verbal agreements or understandings shall be binding upon either LESSOR or LESSEE, and any addition, variation, or modification to this Lease shall be ineffective unless made in writing and signed by the parties. D. LESSOR agrees that LESSOR'S Property (including, without limitation, the Tower) and all improvements comply, and during the term of this Lease, shall continue to comply with all building, life /safety, disability and other laws, codes and regulations of any applicable governmental or quasi - governmental authority. All such compliance shall be accomplished at LESSOR'S sole cost and expense. Except for improvements made by LESSEE, LESSOR, at its sole cost, shall maintain in good condition and repair, the Tower and other improvements upon which the Property is located. LESSEE agrees that LESSEE'S property and all equipment and improvements erected hereunder shall comply, and during the term of this Lease, shall continue to comply with all building, life /safety, disability and other laws, codes and regulations of any applicable governmental or quasi - governmental authority. All such compliance shall be accomplished at LESSEE'S sole cost and expense. LESSEE, at its sole cost and expense, shall maintain the appearance of all such equipment and improvements in a manner or condition not materially different from that at the time of installation. E. This Lease and the performance hereof shall be governed, interpreted, construed and regulated by the laws of the State of Texas. Any litigation concerning this Lease shall be conducted in Tarrant County, Texas and the parties hereby agree to the venue and personal jurisdiction of these courts. F. This Lease, and each and every covenant and condition herein, is intended to benefit the Property and shall extend to and bind the heirs, personal representatives, successors and assigns of the parties. G. The parties agree that all of the provisions hereof shall be construed as both covenants and conditions the same as if the words importing such covenants and conditions had been used in each separate paragraph. H. The parties acknowledge that each has had an opportunity to review and negotiate this Lease and have executed this Lease only after such review and negotiation. The language of each part of this Lease shall be construed simply and according to its fair meaning, and this Lease shall not be construed more strictly in favor or against either party. I. If any portion of this Lease is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion shall be deemed modified to the extent necessary in such court's opinion to render such condition enforceable and, as so modified, such portion and the balance of this Lease shall continue in full force and effect. J. In addition to the other remedies provided for in this Lease, LESSOR and LESSEE shall be entitled to immediate restraint by injunction of any violation of any of the covenants, conditions, or provisions of this Lease. K. The captions of the paragraphs of this Lease are for convenience of reference only and Page 16 of 19 shall not affect the interpretation of this Lease. L. In the event LESSEE has requested modifications to LESSOR'S form lease, this Lease shall not become effective unless LESSEE has reimbursed LESSOR for.. .all professional fees related to review and approval of the modifications, M. Each party represents that it has not been represented by a broker in the approval process of this Lease, N. LESSOR agrees to execute a Memorandum of this Agreement which LESSEE may record with the appropriate recording officer. The date set forth in the Memorandum of Lease is for recording purposes only and bears no reference to commencement of either the Term or rent payments. The Memorandum of Agreement must accurately reflect the terms of this Lease. END OF ARTICLES IN .WITNESS WHEREOF, LESSOR and LESSEE have duly executed this Lease as of the day and year first above written. ATTEST: LESSOR: CITY OF SOUTHLAKE, TEXAS By: Lori Payne LESSOR Secretary John Terrell Its: Mayor Date: LESSEE; CLEAR WIRELESS LLC. .By: . John A. Storch Its: VP. Network Deployment Date: Approved as to form: City Attorney +Page 17 of 19 ACKNOWLEDGMENT C. THE STATE OF COUNTY OF BEFORE ME, the undersigned authority, on this day personally appeared (name), (title) of , : a corporation, known to me to be the person and officer whose name is subscribed to the foregoing "Instrument and acknowledged to me that the same was the act of the said a corporation, and that he /she executed the same as the act of such corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of 2009. (OFFICIAL NOTARY SIGNATURE) NO TARY,PUBLIC- STATE OF i f OF NOTARY) MY COMMISSION EXPIRES THE STATE OF TEXAS COUNTY OF TARRANT (PRINTED, TYPED OR STAMPED NAME The foregoing instrument was acknowledged before me this day of 2009, by of the City of Southlake on behalf of the City, He /she is personally known to me. (OFFICIAL NOTARY SIGNATURE) NOTARY PUBLIC -STATE OF (PRINTED, TYPED OR STAMPED NAME OF NOTARY) MY COMMISSION EXPIRES Page 18 of 19 STATE OF WASHINGTON COUNTY OF KING On August 5, 2009 before me, Joni M Heiss , Notary Public, personally appeared John Storch the . Vice President of Network Deployment of Clear Wireless LLC, a Nevada limited liability company personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument.and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. m D Pri ame: Joni.M Heiss Nofarp Public an and for the State of Washington, Resi ing in King County, WA My commission expires: 10/31/2009 Page 19 of 19 Y]IMO 3¢ MOm U 11L . -k — -- 5 L M — Hd1YM3J111 3111 tl0/- —...m . 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In consideration of the premises and of the mutual obligations and agreements in this Lease, the parties agree as follows: 1. THE PROPERTY A. LESSOR is the titleholder of that certain real property commonly known as the Elevated Water Tower, "Florence Water Tower" at 635 Brewer Rd. City of Southlake, County of Tarrant, State of Texas ( "LESSOR'S Property") which is described on the attached Exhibit "Al." The parties agree that the legal description of LESSOR'S Property may be attached as Exhibit "Al" after execution of this Lease. B. LESSEE hereby desires to lease a portion of LESSOR'S Property containing approximately 10 x .10 square feet, (the "Ground Premises ") and a certain portion of the elevated water storage tank ( "Tower ") located on LESSOR'S Property, together with obtaining a right of access and a right to install utilities (the "Property ") at such locations as previously agreed to and approved by LESSOR and as set forth in Exhibit "A2 '. The Property and landscaping requirements, including any fencing, are to be determined by the LESSOR. In addition, LESSEE shall have the right to run cables and wires under, over and across LESSOR'S Property to connect LESSEE'S equipment on the Tower to its equipment in its facility located on the Property as approved by LESSOR. LESSEE may park its vehicles on LESSOR'S Property when LESSEE is constructing, removing, replacing, and/or servicing its communications facility. C. ' LESSEE covenants and agrees that it has inspected the Tower and the Property and that it does not rely on any representation of LESSOR as to the condition of the Property or Tower or their suitability for the purpose and uses herein intended. D. LESSOR and LESSEE further agree that the Property (including an access right -of -way thereto but excluding the space on the Tower) may be surveyed by a licensed surveyor at the sole cost of LESSEE, and such survey shall then replace Exhibit "A2" and become a part hereof and shall control to describe the Property in the event of any discrepancy between such survey and the description dontained in Paragraph I.B. above. 2. LEASE AND EASEMENT LESSOR leases the Property to LESSEE and grants to LESSEE a non - exclusive easement (during the term of this Lease) to access the Property (seven [7] days a week, twenty-four [24] hours a day) and to install, remove, replace, and maintain utility cables, conduits and pipes, at such locations as mutually agreed to and as depicted in Exhibit "A2 ", from the Property to the appropriate source of electric and telephone facilities. Page I of 19 3. OPTION, TERM AND RENT A. This Lease shall be for an initial term of five (5) years beginning on the ( "Commencement Date ") at an Annual Rent of Thirty thousand one hundred twenty dollars ($30,120), which rent shall be paid annually, in advance, beginning on the Commencement Date and on each anniversary thereof (partial years prorated) to LESSOR or as LESSOR may otherwise direct from time to time in writing at least thirty (30) days before any rent payment date. The Commencement Date shall be the date of the last signature to this Lease. B. LESSEE shall pay LESSOR a late payment charge equal to five percent (5 %) of the late payment for any payment not paid within ten (10) days of when due. In addition to the late payment charge, any amounts not paid within ten(I0) days of when due shall bear interest until paid at the lesser of the rate of one and three quarters percent (1 3 /4 %) per month or the highest rate permitted by law. C. LESSEE is granted options to extend this Lease on these same terms and conditions for four (4) additional five (5) year extension period(s) after the original term expires. This Lease shall automatically be extended for the next extension period at the end of the then - current term subject to the termination requirements in Section 5. D. The Annual Rent shall be increased on the first day of each anniversary (yearly) by an .amount equal to three percent (3 %) of the Rent in effect during the previous year. E. Should this Lease still be in effect at the conclusion of all the extension periods provided for herein, this Lease shall continue in effect upon the same terms and conditions [other than Annual Rent which shall be an amount equal to the Annual Rent in effect for the prior one (1) year period, increased by Paragraph 3.D. above for a further period of one (1) year, and for like annual periods thereafter, until and unless terminated by either party by giving to the other at least six (6) months written notice of its intention to so terminate before the date this Lease expires. 4. USE OF THE PROPERTY A. LESSEE may only use the Property for the operation of a Communications Facility, including, without limitation, required LESSEE antenna array and antenna support structures as set forth in the Exhibit A -3 to this Agreement, and for the purpose of any construction, removal, replacement, maintenance, security and operation of said Communications Facility. LESSEE shall not use or permit the Property to be used for any purposes other than described above without the written consent of LESSOR, which consent will not be unreasonably withheld, conditioned or delayed. I:1 1. This Lease authorizes the LESSEE, subject to Subsection 3 below, to install the antenna and equipment on the Tower shown on Exhibit "A3 ". LESSEE may not add additional equipment or antennas from that shown on Exhibit "A3" without the approval of LESSOR and satisfaction with all FCC and/or Federal Aviation Administration rules. For each additional antenna installed by LESSEE beyond the size of the initial array described in Exhibit "A3", LESSEE shall pay additional rent of $250 per month which shall increase annually under the same terms provided in Section 3.D. and shall become part of the Rent. 2. LESSEE may add equipment to the interior of the LESSEE'S building on the ground so long as the equipment is permitted under this Lease and LESSEE complies with all applicable laws, regulations and rules. LESSEE shall not make any modification to the Ground Premises outside the building without LESSOR'S written consent, which consent will not be unreasonably withheld, conditioned or delayed so long as LESSEE's modifications comply with all applicable laws, rules and regulations. Any improvement of the Property to meet LESSEE'S needs shall be at Page 2 of 19 LESSEE'S sole expense, and LESSEE shall maintain such improvements to the Property in a reasonable condition throughout the term. 4. LESSEE shall not commence improvements or modifications to the Property or the Tower unless LESSOR has approved the plans and the contractor performing the work. Further, LESSEE agrees that it will not hire or use any contractor to perform work on the Property or Tower unless the following requirements are met: a. the LESSOR approves the contractor; b. LESSEE pays for any overtime pay to LESSOR'S employees necessitated by the work and c. should LESSOR elect to have the invoice for the work sent to LESSOR, LESSEE reimburses the LESSOR for the cost of the work within 10 days of receipt of the invoice. C. LESSOR acknowledges that LESSEE'S ability to use the Property for its intended purposes is contingent upon LESSEE'S obtaining and maintaining, both before and after the Commencement Date, all of the certificates, permits, licenses and other approvals (collectively, "Governmental Approvals ") that may be required by any federal, state or local authority for the foregoing uses and improvements to the Property desired by LESSEE. LESSOR shall cooperate with LESSEE in LESSEE'S efforts to obtain such Governmental Approvals and shall take no action that would knowingly or intentionally adversely affect LESSEE'S obtaining or maintaining such .Governmental Approvals, so long as LESSEE is in compliance with applicable provisions of federal, state, and local laws and regulations. D. Nothing in this Lease shall preclude LESSOR from leasing other space for communications equipment to any person or entity including a party which may be in competition with LESSEE. Lease of other space for communications equipment or radio transmission will be in accordance with Section 18 of this Lease. E. The parties understand and agree that the primary function of the property is to serve as a water tower for the LESSOR and that the interests of LESSEE are superseded by the public health, safety, and welfare of the citizens of Southlake served by the Water Tower. In the event that the Southlake City Council or the Southlake City Manager declares a public emergency or if there exists a threat to the Water Tower facilities or potable water supply that would detrimentally impact public health, safety and welfare such that immediate action is necessary, LESSEE shall promptly remove its improvements from the Leased Premises. In the event LESSEE is not able to promptly respond, LESSOR may remove LESSEE'S improvements without incurring liability for damages of any type. Costs of removal and reattachment of improvements shall be borne by LESSEE. 5. TERMINATION A. Provided LESSEE is not in default hereunder, if any of the following occurs, LESSEE shall have the right to immediately terminate this Lease by giving written notice to LESSOR of such termination. L LESSEE determines, in its sole discretion, that it will be unable to obtain all necessary Governmental Approvals for LESSEE intended use of and improvements to the Property desired by LESSEE or that it will be too time consuming or expensive to obtain such Governmental Approvals; or 2. LESSEE'S application for any Governmental Approvals necessary for LESSEE'S use of the Property and improvements desired by LESSEE'S is denied; or 3. Any Governmental Approvals necessary for LESSEE'S use of the Property and /or improvements to the Property, whether now or hereafter desired by LESSEE, are canceled, Page 3 of 19 expired, lapsed or are otherwise, terminated or denied so that LESSEE, in its reasonable judgment, detenmines that it will no longer be able to use the Property for LESSEE'S intended use; or 4. The Federal Communications Commission allocates the frequencies at which LESSEE may operate its antennas and equipment and may from time to time change such frequencies, Any change of this nature that, in LESSEE'S reasonable judgment, renders its operation of a wireless communications facility at the Property obsolete; or 5. If LESSEE determines that the Property has become unsuitable for LESSEE'S operations due to changes in system or network design or in the types of equipment used in such operations or LESSEE'S operations at the Property become unprofitable; provided however, for a tenmination for such purpose to become effective, LESSEE shall tender one (1) year of rental payments at the then rate in effect with LESSEE'S notice to LESSOR to terminate for this reason; or 6. If LESSOR commits a breach of this Lease and fails to cure such breach within thirty (30) days after notice of the breach and requests to cure from LESSEE. B. Provided LESSOR is not in default hereunder and shall have paid all rents and sums due and payable to LESSOR by LESSEE, LESSOR shall have the right to terminate this Lease at any time after five (5) years from execution of this Lease upon one (1) year prior written notice to LESSEE. In addition and provided LESSEE is not in default hereunder and shall have paid all rents and sums due and payable to LESSOR by LESSEE, LESSEE shall have the right to terminate this lease at any time after five (5) years from execution of this Lease upon one(1) year prior written notice to LESSOR. C. Notwithstanding anything herein to the contrary, any breach, default or failure by LESSEE to perform any of the duties or obligations assumed by LESSEE under this Lease, or to faithfully keep and perform any of the terms, conditions and provisions hereof, shall be cause for termination of this Lease by LESSOR in the manner set forth in this Paragraph. LESSOR shall deliver to LESSEE ten (10) days prior written notice of its intention to terminate this Lease, including in such notice a reasonable description of the breach, default or failure. If LESSEE shall fail or refuse to cure, adjust or correct the breach, default or failure within said ten (10) days written notice to LESSEE to tenminate this Lease. Upon termination of this Lease, all rights, powers and privileges of LESSEE hereunder shall cease and terminate and LESSEE shall, within thirty (30) days, vacate the Property and remove all of its improvements, fixtures and equipment. In the event LESSEE does not vacate the Property within said period, LESSOR may, without being deemed guilty of trespass, and without any liability whatsoever on the part of LESSOR, enter upon and take full possession of the Property and remove any and all improvements, fixtures and equipment not belonging to LESSOR that may be found upon the Property without being liable for damages. D. Any termination notice rendered by LESSEE or LESSOR pursuant to this Paragraph shall cause this Lease to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Lease and the parties shall make -an- appropriate adjustment, -as -of such- termination -date, with - respect -to_ payments -due to the other under this Lease. 6. ASSIGNMENT AND SUBLETTING A. LESSEE shall not assign this Lease, or allow it to be assigned, in whole or in part, by operation of law or otherwise or mortgage or pledge the same, or sublet the Property, or any part thereof, without the prior written consent of LESSOR except as follows: LESSEE will have the right to assign, sell or transfer its interest under this Agreement to LESSEE'S parent company or any affiliate or subsidiary of, or partner in, LESSEE or its parent company or to any entity which acquires all or substantially all of the LESSEE'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. In such event, LESSEE shall provide at least 60 days' notice to LESSOR of such assignment, transfer or sale. Such assignment, Page 4 of 19 sale or transfer will not become effective unless the assignee or purchaser agrees in writing, approved by the LESSOR, to accept and be bound by the conditions and obligations imposed upon LESSEE under this Lease Agreement. LESSEE may not otherwise assign this Agreement without LESSOR'S consent, LESSOR'S consent not to be unreasonably withheld, conditioned or delayed. B. No consent by LESSOR to any assignment or sublease by LESSEE shall relieve LESSEE of any obligation to be performed by LESSEE under this Lease, whether arising before or after the assignment or sublease. The consent by LESSOR to any assignment or sublease shall not relieve LESSEE from the obligation to obtain LESSOR'S express written consent to any other assignment or sublease and any assignment shall not become effective unless the assignee agrees in writing to be bound by the obligations imposed upon Lessee by this Agreement. C. Any sale or other transfer, including by consolidation, merger or reorganization, of a majority of the voting stock of LESSEE, if LESSEE is a corporation, or any sale or other transfer of a majority in interest (whether of profits, losses, capital or voting power) or a majority of the persons composing the managers of the partnership, if LESSEE is a partnership, shall not be an assignment for purposes of this Paragraph 6. 7. FIRE OR OTHER CASUALTY A. LESSEE shall immediately notify LESSOR of any and all damages resulting from, arising out of, or caused to the Property and LESSOR'S property surrounding the Property, including but not limited to structural damages, electrical damages, damages to fencing, irrigation systems or landscaping by LESSEE'S operations, and /or by LESSEE, its officers, agents, employees and invitees. LESSEE shall be solely responsible for the costs and the repair of all such damages and such repairs and/or replacements shall be completed in a timely manner acceptable to LESSOR. B. If the Tower, or access to it, is damaged or destroyed by a casualty, LESSOR shall deliver written notice to LESSEE within twenty (20) days after receipt of notice from LESSOR'S insurance company, which notice from LESSOR sets forth LESSOR'S election (a) not to repair, restore and/or reconstruct the Tower, or (b) to repair, restore and/or reconstruct the Tower. If, as a result of any such casualty, the Property becomes totally or partially unusable by LESSEE, rent shall abate during the period of repair in the same proportion to the total rent as the portion of the Property rendered unusable bears to the entire Property. If LESSOR elects to repair, then LESSOR shall promptly commence appropriate repairs (to be diligently prosecuted to completion entirely at LESSOR'S expense), and this Lease shall continue in full force and effect. C. Notwithstanding anything contained herein to the contrary, LESSOR is under no duty or obligation to repair the Tower in a manner that would accommodate LESSEE'S equipment or antenna array. In the event that following repairs, the Tower is no longer suitable for LESSEE'S intended use, LESSEE'S sole remedy shall be to terminate this Lease. D. If LESSOR (a) undertakes the repair, restoration and /or reconstruction of the Tower or of any access_ thereto but fails to__ complete _ such _ repair, _ restoration,_ and/or reconstruction within forty -five (45)_ days after the casualty, or (b) notifies LESSEE of LESSOR'S intention not to repair, restore and /or reconstruct the Tower, or fails to deliver to LESSEE the written notice required under Paragraph 7.13. within twenty (20) days, then LESSEE may immediately cancel this Lease by giving written notice of its election to cancel to LESSOR. 8. INDEMNIFICATION AND INSURANCE A. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF INDEMNITEES, LESSEE SHALL, AT ITS SOLE COST AND EXPENSE, INDEMNIFY AND HOLD HARMLESS LESSOR AND ALL ITS OFFICERS, BOARDS, COMMISSIONS, EMPLOYEES, AND AGENTS (HEREINAFTER REFERRED TO AS "INDEMNITEES "), FROM AND AGAINST: Page 5 of 19 1. ANY AND ALL LIABILITY, OBLIGATIONS, DAMAGES, PENALTIES, CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT. WITNESSES AND CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY ACT OR OMISSION OF LESSEE, ITS PERSONNEL, EMPLOYEES, AGENTS, CONTRACTORS OR SUBCONTRACTORS, RESULTING IN PERSONAL INJURY, BODILY INJURY, SICKNESS, DISEASE OR DEATH TO ANY PERSON OR DAMAGE TO, LOSS OF OR DESTRUCTION OF TANGIBLE OR INTANGIBLE PROPERTY, LIBEL; SL. ANDER, INVASION OF PRIVACY AND UNAUTHORIZED USE OF ANY TRADEMARK, TRADE NAME, COPYRIGHT, PATENT, SERVICE MARK OR ANY OTHER RIGHT OF ANY PERSON, FIRM OR CORPORATION, WHICH MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH LESSEE'S CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE, USE OR CONDITION OF THE PROPERTY OR LESSEE'S FACILITIES OR THE LESSEE'S FAILURE TO COMPLY WITH ANY FEDERAL, STATE OR LOCAL STATUTE, ORDINANCE OR REGULATION. 2. ANY AND ALL LIABILITIES, OBLIGATIONS, DAMAGES, PENALTIES, CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES (INCLUDING , WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS), WHICH ARE IMPOSED UPON, INCURRED BY OR ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY CLAIM OR LIEN ARISING OUT OF WORK, LABOR, MATERIALS OR 'SUPPLIES PROVIDED OR SUPPLIED TO LESSEE, ITS CONTRACTORS OR :SUBCONTRACTORS, FOR THE INSTALLATION, CONSTRUCTION, OPERATION, MAINTENANCE OR USE OF THE PROPERTY OR LESSEE'S ANTENNA FACILITIES, AND, UPON THE WRITTEN REQUEST OF LESSOR, LESSEE SHALL CAUSE SUCH CLAIM OR LIEN COVERING LESSOR'S PROPERY TO BE DISCHARGED OR BONDED WITHIN 30 DAYS FOLLOWING SUCH REQUEST. B. 1T IS THE INTENT OF THE PARTIES BY AGREEMENT TO THIS SECTION S THAT IF A CLAIM IS MADE IN ANY FORUM AGAINST 1NDEMNITEES FOR ANY OF THE REASONS. REFERRED TO IN SECTION S, AND UPON RESOLUTION OF THE CLAIM: 1) THERE .`IS NO FINDING BY A COURT OF COMPETENT JURISDICTION THAT INDEMNITEES WERE NEGLIGENT IN CONNECTION WITH ANY OF THE REASONS REFERRED TO 1N. SECTION S, LESSEE SHALL HOLD INDEMNITEES HARMLESS AND INDEMNIFY THEM FOR ANY DAMAGE, LOSS, EXPENSE, OR LIABILITY RESULTING FROM THE CLAIM, INCLUDING ALL ATTORNEY'S FEES, COSTS, AND PENALTIES INCURRED; OR 2. THERE IS A FINDING BY A COURT OF COMPETENT JURISDICTION THAT LESSEE WAS NEGLIGENT TO A GREATER DEGREE THAN INDEMNITEES IN CONNECTION WITH ANY OF THE REASONS REFERRED TO IN SECTION S, LESSEE - -- -- SHALL HOLD INDEMNITEES- HARMLESS AND INDEMNIFY_ THEM__ FOR ANY DAMAGE, LOSS, OR LIABILITY RESULTING FROM THE CLAIM, INCLUDING ALL ATTORNEY'S FEES, COSTS AND PENALTIES. C. In the event any action or proceeding shall be brought against the Indemitees by reason of any matter for which the Indemnitees are indemnified hereunder, LESSEE shall, upon notice from any of the Indemnitees, at LESSEE'S sole cost and expense, resist and defend the same; provided however, that LESSEE shall not admit liability in any such matter on behalf of the Indemnitees without the written consent of LESSOR and provided further that Indemnitees shall not admit liability for, nor enter into any compromise or settlement of, any claim for which they are indemnified hereunder, without the prior written consent of LESSEE. Page 6 of 19 D. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. E. LESSOR shall give LESSEE prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Lease. Nothing herein shall be deemed to prevent LESSOR from cooperating with LESSEE and participating in the defense of any litigation by LESSOR'S own counsel at its own expense. F. LESSEE shall pay all expenses incurred by LESSOR 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 LESSOR'S attorney, and the actual expenses of LESSOR'S agents, employees or expert witnesses, and disbursements and liabilities assumed by LESSOR in connection with such suits, actions or proceedings but shall not include attorneys fees for services that are unnecessarily duplicative of services provided LESSOR by LESSEE. G. The indemnifications in this section shall survive the termination of this Lease. H. Without limiting any of the other obligations or liabilities of the LESSEE, during the term of the Agreement, the LESSEE shall purchase and maintain the following minimum insurance coverage with companies duly approved to do business in the State of Texas. LESSOR has .the right to reasonably adjust these minimum insurance coverages during any renewal of this Lease Agreement by notifying LESSEE in writing. The adjusted coverage requirements shall become effective sixty (60) days after notification by LESSOR. Coverage shall he of the following types and not less than the specified amounts: 1. Worker's compensation as required by Texas law, with the policy endorsed to provide a waiver of subrogation as to the LESSOR; employer's liability insurance of not less than One Million Dollars ($1,000,000.00). 2. Commercial general liability insurance, including premises operations; LESSEE'S independent contractors' liability, completed operations and contractual. liability covering, but not limited to, the liability assumed under the indemnification provisions of this Agreement, fully insuring LESSEE'S (or SubLESSEE'S) liability for injury to or death of LESSOR'S employees and third parties, extended to include personal injury liability coverage with damage to property of third parties, broad form property damage, with minimum limits as set forth below: General Aggregate $2,000,000 Bodily Injury $1,000,000 each occurrence Property Damage $1,000,000 each occurrence or $2,000,000 combined single limit coverage for bodily injury and property damage, Products-Components/Operations Aggregate Personal & Advertising Injury (With Employment Exclusion Deleted) Contractual Liability: Bodily Injury Property Damage $1,000,000 $1,000,000 each occurrence $1,000,000 each occurrence $1,000,000 each occurrence or $2,000,000 combined single limit coverage for bodily injury and property damage. Page 7 of 19 The policy shall include coverage extended to apply to completed operations, asbestos hazards (if this project involves work with asbestos) and ECU (explosion, collapse and underground) hazards. The completed operations must be maintained for a minimum of one year after final completion of any construction project during the term of this Agreement, with evidence of same filed with LESSOR. 3. Comprehensive automobile and truck liability insurance, covering owned, hired and non -owned vehicles, with a combined bodily injury and property damage minimum limit of $1,000,000 per occurrence; or separate limits of $500,000 for bodily injury (per person) and $500,000 for property damage. Such insurance shall include coverage for loading and unloading hazards. Property Insurance (Builder's All Risk). a. LESSEE shall purchase and maintain, at all times during the term, this Agreement property insurance written on a builder's risk "all- risk" or equivalent policy form in the amount of the initial contract price, plus value of subsequent contract modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made or until no person or entity other than the LESSOR has an insurable interest in the property required by this paragraph to be covered, whichever is later. This insurance shall include interests of the LESSOR, the LESSEE, SubLESSEEs and Sub- SubLESSEEs in the Project. b. Property insurance shall be on an "all- risk" or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, false work, testing and startup, temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for LESSEE'S services and expenses required as a result of such insured loss. C. If the insurance required by this paragraph requires deductibles, the LESSEE shall pay costs not covered because of such deductibles. d. This property insurance shall cover portions of the Work stored off the site, and also portions of the Work in transit. 5. Policy Endorsements: Each insurance policy to be furnished by LESSEE shall include the following conditions by endorsement to the policy: a. Name the _ LESSOR__ as an additional_ insured as to all _ applicable_ policies, i.e., general and automobile liability coverage. b. Each policy shall require that 30 days prior to cancellation, non - renewal or any material change in coverage, a notice thereof shall be given to LESSOR by certified mail. If the policy is cancelled for nonpayment of premium, only 10 days written notice to LESSOR is required. C. The term "LESSOR" shall include all authorities, boards, bureaus, commissions, divisions, departments and officers of the LESSOR and individual members, employees and agents thereof in their official capacities, and/or while acting on behalf of the LESSOR. d. The policy phrase "other insurance" shall not apply to the LESSOR Page 8 of 19 where the LESSOR is an additional insured on the policy. All plans shall be primary and non - contributary. The City's other insurance will be excess coverage and shall not contribute to the primary coverage. 6. Special Conditions a. Insurance furnished by the LESSEE shall be in accordance with the following requirements: i. Any policy submitted shall not be subject to limitations, conditions or restrictions deemed inconsistent with the intent of the insurance requirements to be fulfilled by LESSEE. ii. All policies are to be written through companies duly licensed to transact that class of insurance in the State of Texas. iii. All liability policies required herein shall be written with an "occurrence" and not on a claims made basis and shall name the City, its officers and employees as additional insureds by using endorsement CG 20 26 or broader. All insurance carriers and surplus carriers shall be rated A+ or better by A.M. Best Company. b. LESSOR and LESSEE agree to the following: i. LESSOR and .LESSEE, respectively, each hereby waive all subrogation rights for loss .or damage to the extent same are covered by insurance. Insurers shall have no right of recovery or subrogation against the LESSOR and LESSEE, it being the parties' intention that the insurance policies shall. protect all parties to the contract and be primary coverage for all losses covered by the policies; ii. Companies issuing the insurance policies and LESSEE shall have no recourse against the LESSOR for payment of any premiums or assessments for any deductibles, as all such premiums and deductibles are the sole responsibility and risk of the LESSEE; iii. Approval, disapproval or failure to act by the LESSOR regarding any insurance supplied by the LESSEE (or any SubLESSEEs or contractors) shall not relieve the LESSEE of full responsibility or liability for damages and accidents as set forth in this Agreement. Neither shall be bankruptcy, insolvency or denial of liability by the insurance company exonerate the LESSEE from liability; iv. Any of such insurance policies required under this paragraph__ may be written in combination with any of the others, where legally permitted, but none of the specified limits may be lowered thereby; V. Prior to commencement of operations pursuant to this Agreement, the LESSEE shall furnish the LESSOR with satisfactory proof that LESSEE has provided adequate insurance coverage in amounts and by approved carriers as required by this Agreement; vi. LESSEE shall provide notice of any actual or potential claim or litigation that would affect required insurance coverage to the LESSOR in a timely manner; Page 9 of 19 vii. LESSEE agrees to either require its SubLESSEEs to maintain the same insurance coverage and limits as specified for the LESSEE. Likewise, LESSOR shall provide notice of any actual or potential claim or litigation that would affect required insurance coverage to the LESSEE in a timely manner; and viii. Prior to the effective date of cancellation, LESSEE shall deliver to the LESSOR a replacement certificate of insurance or proof of reinstatement. 9. UTILITIES A. LESSEE shall be responsible directly to the serving entities for all utilities required by LESSEE'S use of the Property; however, LESSOR agrees to cooperate with LESSEE in its efforts to obtain utilities from any location provided by the LESSOR or the servicing utility. Should electric power be provided by LESSOR, LESSEE will install an electric meter and LESSEE'S usage shall be read by LESSOR or, at LESSOR'S option, by LESSEE, on an annual basis and the cost of electricity used by LESSEE shall be paid by LESSEE to LESSOR annually as a payment separate from rent and shall be computed at the then - current public utility rate. B. Should a power outage occur so that LESSEE is unable to operate using power from the electric utility, LESSEE may operate with an electric generator, but only until electric utility power is restored to the site. 10. RIGHTS TO EQUIPMENT; CONDITION ON SURRENDER LESSEE'S antennas and equipment shall remain personal to and the property of LESSEE. At the termination or expiration of this Lease, if notice is received from LESSOR, LESSEE shall remove its antennas and/or equipment. LESSEE shall repair any damage caused by such removal, and shall otherwise surrender the Property at the expiration of the term, as same may have been extended, or earlier termination thereof, in good condition, ordinary wear and tear, damage by fire and other casualty excepted. Any of LESSEE'S equipment or other property that has not been removed from the Property within thirty (30) days from the.time of Lease termination shall be deemed abandoned by LESSEE and LESSOR shall be free to.dispose of the same in any manner LESSOR chooses and without any liability to LESSEE therefore. 11. .LESSEE DEFAULTS A. The occurrence of any one or more of the following events shall constitute an "Event of Default" hereunder by LESSEE: I. The failure by LESSEE to make any payment of rent or any other payment required to be made by LESSEE hereunder, as and when due, where such failure shall continue for a period of twenty (20) days after written notice thereof is received by LESSEE from LESSOR. 2. The failure by LESSEE to observe or perform any of the covenants or provisions of this Lease to be observed or performed by LESSEE, other than specified in Paragraph 11. A. (1), where such failure shall continue for a period of twenty (20) days after written notice thereof is received by LESSEE from LESSOR; provided however, that it shall not be deemed an Event of Default by LESSEE if LESSEE shall commence to cure such failure within said ten (10) days period and thereafter diligently prosecutes such cure to completion. B. If there occurs an Event of Default by LESSEE, in addition to any other remedies available to LESSOR at law or in equity, LESSOR shall have the option to terminate this Lease and all rights of LESSEE hereunder. Page 10 of 19 12. NOTICES All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, postage prepaid, addressed as shown below (or to any other address that the party to be notified may have designated to the sender by like notice): LESSEE: Clear Wireless LLC, a Nevada limited liability company, Attn: Legal Dept. Address: 4400 Carillon Point Kirkland, WA 98033 Telephone Number: 866 - 316 -7575 LESSOR: The City of SOUTHLAKE, Texas, a municipal corporation Attn: City Manager Address: 1400 Main Street Suite 460 Southlake, Texas 76092 Telephone Number: (817)748 -8057 13. SALE OR TRANSFER BY LESSOR Should LESSOR, at any time during the term of this Lease, sell, lease, transfer or otherwise convey all or any part of LESSOR'S Property to any transferee other than LESSEE, then such transfer shall be under and subject to this Lease and all of LESSEE'S rights hereunder. 14. HAZARDOUS SUBSTANCES A. LESSOR warrants that to its knowledge, as of the Commencement Date, there are no hazardous materials, as that term is defined in Environmental Regulations, on the Property. Upon request, LESSOR shall make available to LESSEE copies of all environmental assessments regarding the Property. B. LESSEE represents, warrants, and covenants to LESSOR that LESSEE shall at no time during the term of this Lease Agreement use or permit the Property to be used in violation of any Environmental Regulations. LESSEE will not exercise any control over environmental conditions or any activities, under this Agreement, at or near the Property that involve the generation, storage, treatment, or disposal of any hazardous substance, material, chemical or waste, except for the use of a generator, batteries or .solvents and chemicals as are commonly used in the ordinary course of LESSEE'S business which shall be used in a manner which does not violate any Environmental Regulations. C. LESSEE agrees to defend, indemnify and hold LESSOR harmless from and against any - - and all claims, causes of__ action, __ demands and liability_ including,_ but not limited to,_ damages,__ costs,__ expenses, assessments, penalties, fines, losses, judgments and attorney's fees that LESSOR may suffer due to the existence or discovery of any Hazardous Substance on the LESSOR'S Property or the migration of any Hazardous Substance to other properties or released into the environment to the extent such Hazardous Substances result from LESSEE'S activities on the Property during the term of this Lease. D. LESSEE and LESSOR also agree that LESSEE'S use of the Property will not involve the subsurface, except for the placement of a foundation for LESSEE'S equipment and the necessary utility connections from the foundation to the Tower. E. For the purposes of this Section, the tern "Environmental Regulations" shall mean any law, statute, regulation, order or rule now or hereafter promulgated by any Governmental Authority, whether local, state or federal, relating to air pollution, water pollution, noise control and/or transporting, Page I I of 19 storing, handling, discharge, disposal or recovery of on -site or off site hazardous substances or materials, as same may be amended from time to time, including without limitation the following: (i) the Clean Air Act (42 U.S.C. § 7401 et seq.); (ii) Marine Protection, Research and Sanctuaries Act (33 U.S.C. § 1401- 1445); (iii) the Clean Water Act (33 U.S.C. § 1251 et seq.); (iv) Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. § 6901 et seq.); (v) Comprehensive Environmental Response Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601 et seq.); (vi) Toxic Substances Control Act (15 U.S.C. § 2601 et seq.); (vii) the Federal Insecticide, Fungicide and Rodenticide Act as amended (7 U.S.0 § 135 et seq.); (viii) the Safe Drinking Water Act (42 U.S.C. § 300 (f) et seq.); (ix) Occupational Health and Safety Act (29 U.S.C. § 651 et seq.); (x) the Hazardous Liquid Pipeline Safety Act (49 U.S.C. § 2001 et seq.); (xi) the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.); (xii) the Noise Control Act of 1972 (42 U.S.0 § 4901 et seq.); (xiii) Emergency Planning and Community Right to Know Act (42 U.S.0 §§ 11001- 11050); and (xiv) the National Environmental Policy Act (42 U.S.0 §§ 4321- 4347). F. NOTWITHSTANDING THE PROVISIONS OF SECTION 14, IT IS THE INTENT OF THE PARTIES THAT IF A CLAIM IS MADE IN ANY FORUM AGAINST INDEMNITEES CONCERNING THE GENERATION, RELEASE, DISPOSAL, STORAGE, OR TRANSPORTATION OF A HAZARDOUS SUBSTANCE OR MATERIAL, AS THOSE TERMS ARE DEFINED IN "ENVIRONMENTAL REGULATIONS ", ON THE PROPERTY BY LESSEE, ITS AGENTS, EMPLOYEES, OR CONTRACTORS, AND UPON RESOLUTION OF THE CLAIM: I. THERE IS NO FINDING BY A COURT OF COMPETENT JURISDICTION THAT INDEMNITEES WERE NEGLIGENT IN CONNECTION WITH THE GENERATION, RELEASE, DISPOSAL, STORAGE OR TRANSPORTATION OF THE HAZARDOUS SUBSTANCE, LESSEE SHALL HOLD INDEMNITEES HARMLESS AND INDEMNIFY THEM FOR ANY DAMAGE, LOSS, EXPENSE, OR LIABILITY RESULTING FROM THE CLAIM, INCLUDING ALL ATTORNEYS' FEES, COSTS, AND PENALTIES INCURRED OR 2. THERE IS A FINDING BY A COURT OF COMPETENT JURISDICTION THAT LESSEE WAS NEGLIGENT TO A GREATER DEGREE THAN INDEMNITEES IN CONNECTION WITH THE GENERATION, RELEASE, DISPOSAL, STORAGE, OR TRANSPORTATION OF THE HAZARDOUS SUBSTANCE, LESSEE SHALL HOLD INDEMNITEES HARMLESS AND INDEMNIFY THEM FOR ANY DAMAGE, LOSS, EXPENSE, OR LIABILITY RESULTING FROM THE CLAIM, INCLUDING ALL ATTORNEYS' FEES, COSTS, AND PENALTIES INCURRED. G. This Section shall survive the expiration or termination of this Agreement. 15, CONDEMNATION A. In the event the whole of LESSOR'S property, including without limitation the Property and Tower, shall be taken or condemned, either temporarily or permanently, for public purposes, or sold to -- -a -- condemning_ authority under- threat of condemnation to prevent _ taking,_ then this Lease_ shall_ forthwith_ automatically cease and terminate. B. In the event any portion of the Property, including without limitation the Tower, shall be taken or condemned, either temporarily or permanently, for public purposes, or sold to a condemning authority under threat of condemnation to prevent taking, then LESSOR agrees that LESSEE may use and/or construct upon an alternative portion of LESSOR'S Property which is equally suitable for LESSEE'S purposes, provided such space is available. The exact site to which LESSEE may relocate will be determined by LESSOR, and it may be upon any portion of LESSOR'S Property (or other property owned or controlled by LESSOR) provided that LESSEE reasonably approves the site as equally suitable for LESSEE'S intended uses. LESSOR will designate a site to which LESSEE may relocate prior to the taking, condemnation or sale. In the event no alternative portion of the LESSOR'S Property is equally suitable for the purposes of LESSEE, then LESSEE may terminate this Lease. Page 12 of 19 C. LESSOR shall receive the entire condemnation award for land, Tower and such other improvements as are paid for by LESSOR, and LESSEE hereby expressly assigns to LESSOR any and all right, title and interest of LESSEE now or hereafter arising in and to any such award. LESSEE shall have the right to recover from such authority but not from LESSOR, any compensation as may be awarded to LESSEE on account of the leasehold interest of LESSEE now or hereafter arising in and to any such award. LESSEE shall have the right to recover from such authority, but not from LESSOR, any compensation as may be awarded to LESSEE on account of the leasehold interest, moving and relocation expenses, and deprecation to and removal of the personal property and fixtures of LESSEE. 16. LIENS LESSEE shall keep the Property free from any liens arising out or any work performed, materials furnished, or obligations incurred by or for LESSEE. LESSEE shall, within twenty (20) days following the imposition of any such lien, cause the same to be released of record by payment or posting of a proper bond. No work which LESSOR permits LESSEE to perform on the Property shall be deemed to be for the use and benefit of LESSOR so that no mechanics or other lien shall be allowed against the estate of LESSOR by reason of its consent to such work. LESSOR shall have the right to post notices that it is not responsible for payment for any such work. V. TAXES LESSEE shall be liable for and shall pay to the applicable taxing authority if billed directly to LESSEE, or to LESSOR if billed to LESSOR, upon thirty (30) days prior, written notice from LESSOR, any and all taxes and assessments levied against any personal property or trade or other fixtures placed by LESSEE in or about the Property. LESSEE shall have the right to appeal such taxes and assessments. LESSEE shall pay as additional rent any increases in real property taxes levied against LESSOR'S Property, including the Tower, as a result of improvements constructed by LESSEE on the Property. LESSEE will not be responsible for any increases in real property taxes, which are a result of reassessment of LESSOR'S Property due to any sale or transfer of ownership thereof. LESSEE shall have the right to appeal such real property taxes. 18. QUIET ENJOYMENT AND NON - INTERFERENCE A. LESSOR warrants and agrees that LESSEE, upon paying the rent and performing the covenants herein provided, shall peaceably and quietly have and enjoy the Property. S. LESSEE covenants and agrees that LESSEE'S equipment, its installation, operation and maintenance will: I. Not interfere with the operation of existing radio equipment at the Tower, whether operated by LESSOR or other operators prior to installation of LESSEE'S antennas - -- - -- and/or transmission lines on the Tower. LESSEE shall coordinate with - LESSOR- and -all other- - -- -- operators of existing radio equipment at the Tower to insure that LESSEE'S frequencies and antenna locations will be compatible with said existing radio equipment. In the event there is harmful interference to said electronic equipment, LESSEE will promptly take all steps to eliminate said harmful interference within ten (10) days after notice from LESSOR or such other operator to LESSEE advising of the interference. If said interference cannot be eliminated within thirty (30) days of notice thereof, LESSEE agrees to suspend operations (transmissions) at the site while the interference problems are studied and a means found to mitigate them. If said interference cannot be eliminated, then LESSEE shall remove its building and equipment from LESSOR'S Property and this Lease shall thereupon be terminated. In addition, in the event LESSOR desires to install its own additional radio equipment at the water tower site in the future, LESSEE agrees to work with LESSOR to eliminate any interference with said radio equipment. However, LESSEE shall not be required to eliminate interference on equipment installed after Page 13 of 19 LESSEE equipment is installed. However, in no event shall LESSEE be required to deactivate or move its antennas or equipment on the tower site or the equipment building. 2. During the term of this Lease or any extension thereof, LESSOR shall not permit other tenants, to place or operate any equipment, which would interfere with LESSEE'S equipment or operations on the LESSOR'S Property or Property. LESSOR shall cause that all subsequent tenants on the Tower to first coordinate with LESSEE to ensure that their frequencies and antenna locations will be compatible with LESSEE'S and to agree to a clause similar to this Section 18.13.(1) herein, promising to immediately eliminate harnnful interference if said tenant's radio equipment should interfere with that of LESSEE herein. C. LESSEE, as well as LESSEE'S property, shall comply with all applicable rules and regulations of the Federal Communications Commission, state laws and Federal laws, City Ordinances and electrical codes of City of Southlake and for State of Texas. Under this Lease, the LESSOR assumes no responsibility for the licensing, operations and/or maintenance of LESSEE'S equipment, antennas, transmission lines or attachments. �VRM - M I M LESSEE shall, at its sole cost and expense, prepare and deliver to LESSOR, or cause to be prepared and delivered to LESSOR, an evaluation of the radio frequency emissions from the Tower site as required by the Federal Communications Commission, taking into consideration the addition of the LESSEE'S radio communications equipment. In the event the LESSEE determines that such radio communications equipment would cause the Tower site not to comply with the radio frequency exposure limits promulgated under 47 C.F.R. § 1.1307, et. Seq. (1997, as amended from time to time), LESSOR at its sole discretion may modify or cause modifications of equipment or conditions on the Tower site in order to permit location of LESSEE'S radio communications equipment at Tower in compliance with the RF Emissions Regulations. If LESSOR elects not to effect such modifications, it shall so notify LESSEE, and LESSEE shall thereafter have the right to terminate the Lease by notice to LESSOR. LESSOR grants LESSEE the right to place electromagnetic energy warning signs proximate to its Communication Facility and radio communications equipment so long as such warning signs are in compliance with applicable law. 20. COORDINATION OF OPERATION A. LESSOR agrees (i) to use its diligent efforts to minimize inconvenience to LESSEE by using its diligent efforts not to cause or permit any interruption or interfere with the operations of LESSEE'S antennas or equipment, and (ii) to give LESSEE notice of any repairs, alterations, additions or improvements to be made with respect to the maintenance and operation of the Tower and the Property or of any planned shut downs associated with the Tower for scheduled or routine maintenance that might adversely affect the operation of LESSEE'S wireless communications facility, antennas or equipment at least thirty (30) days written notice before the repair, alteration, addition, improvement or shut down of the tower. -- -- B. Access to the interior of Tower __or -to- -the top _of_the Tower__ shall_ be accomplished only with the presence of the City's Public Works Operations Supervisor or his or her representative. Only qualified and adequately insured employees, agents, contractors or persons under LESSEE'S direct supervision will be permitted to climb the Tower and to install, maintain, or remove LESSEE'S antennas and/or equipment from the Tower. LESSOR retains the right to permit its own employees and agents and employees and agents of the subsequent users of the Tower to climb the Tower for the purpose of repair and maintenance or for any other purposes that do not interfere with LESSEE'S use of the Tower, and so long as LESSEE complies with the provisions of Section 18 of this Lease. C. LESSOR shall not permit any person, including without limitation any contractor, employee, agent, tenant, or invitee, to work within a ten (10) foot radius of LESSEE'S antennas unless LESSEE is notified, except in the case of an emergency, prior to such activity. LESSOR agrees to give Page 14 of 19 LESSEE reasonable advance written notice (except in the case of emergency where advance written notice cannot be reasonably given, in which event, LESSOR shall give LESSEE telephonic notice at (866) 316- 7575 of repairs, alterations, additions, or improvements to be made with respect to the maintenance and operation of the Tower and the Property within such radius of the antennas. D. In the event that LESSOR determines that any equipment or operation of LESSEE causes radio interference, as defined and regulated by the Federal Communications Commission, or interferes with the operation or use of the Tower or with any of LESSOR'S facilities or LESSOR'S equipment on the Tower, then LESSEE shall have thirty (30) days within which to correct such radio interference, pursuant to Section 18.13,. , unless such interference is with LESSOR'S emergency communications; then such interference shall be corrected immediately or terminated. E. It is further understood and agreed that LESSOR may perform reasonable routine maintenance, painting, etc. of the Tower without compensation or liability to LESSEE, even though such maintenance and painting may cause interference with LESSEE'S operations. LESSOR shall notify LESSEE at least sixty (60) days prior to any scheduled maintenance or painting on the Tower that will be likely to interfere with the operation of LESSEE'S equipment and allow LESSEE to construct and operate temporary facilities on LESSOR'S Property. LESSOR shall not be required to notify LESSEE prior to performing any emergency maintenance on the Tower. F. To the extent that any shut down, repair, alteration, addition or improvement of the Tower might adversely affect the operation of LESSEE'S Wireless Communications facility, antennas or equipment for a period in excess of fourteen (14) days, the rent shall be abated for the relevant time period during which LESSEE'S operations are adversely affected. 21. LIGHTING OF ANTENNAS LESSOR hereby agrees that, if because of LESSEE'S operations on the Property any laws or regulations of the Federal Aviation Administration, Federal Communications Commission or any other relevant governmental agency or body require or recommend that LESSEE'S antennas and/or the Tower be lit and/or marked, LESSEE may install and maintain such lighting and markings. In no event, however, shall LESSEE be responsible for the installation or maintenance of any lighting or markings required by the operations of LESSOR or any other tenant in the Tower. LESSOR will permit LESSEE access to all portions of the Tower that LESSEE may need in order to check and replace such required or recommended lighting or marking. 22. BROKERS LESSOR and LESSEE represent to each other that they have not negotiated with any real estate broker in connection with this Lease. 23. ESTOPPEL CERTIFICATES A. LESSOR, at the -- request -of LESSEE, shall provide LESSEE with -a- certificate -- stating: (1) -- whether LESSOR has any claim against LESSEE and if so, stating the nature of such claim; (2) that LESSOR recognizes LESSEE'S right to LESSEE'S antennas, equipment and other property; (3) that LESSEE has the right to remove LESSEE'S equipment and other property from the Property notwithstanding that same may be considered a fixture under local law; and (4) that LESSOR has no interest in and disclaims any interest to LESSEE'S equipment and other property. B. LESSEE, at the request of LESSOR, shall provide LESSOR with a certificate stating: (1) that this Lease is unmodified and in full force and effect (or, if there has been any modification, that the same is in full force and effect as modified and stating the modification); (2) whether or not, to LESSEE'S knowledge, there are then existing any set -offs, or defenses against the enforcement of any of the agreements, terms, covenants or conditions hereof upon the part of LESSEE to be performed or complied with (and, if so specifying the same); and (3) the dates, if any, to which the rent has been paid in advance. Page 15 of 19 24. MISCELLANEOUS PROVISIONS A. This Lease is not a franchise. This agreement does not prevent the LESSOR from seeking to implement a franchise on LESSEE, but LESSEE does not acknowledge that the LESSOR has a right to franchise LESSEE or waive any right it might have to contest a franchise. B. LESSOR warrants and agrees that LESSOR is seized of good and sufficient title to and interest in the Property and has full authority to enter into and execute this Lease and that there are no undisclosed liens, judgments or impediments of title on LESSOR'S Property that would affect this Lease. C. This Lease, including attached exhibits which are hereby incorporated by reference, incorporates all agreements and understandings between LESSOR and LESSEE, and no verbal agreements or understandings shall be binding upon either LESSOR or LESSEE, and any addition, variation, or modification to this Lease shall be ineffective unless made in writing and signed by the parties. D. LESSOR agrees that LESSOR'S Property (including, without limitation, the Tower) and all improvements comply, and during the term of this Lease, shall continue to comply with all building, life /safety, disability and other laws, codes and regulations of any applicable governmental or quasi - governmental authority. All such compliance shall be accomplished at LESSOR'S sole cost and expense. Except for improvements made by LESSEE, LESSOR, at its sole cost, shall maintain in good condition and repair, the Tower and other improvements upon which the Property is located. LESSEE agrees that LESSEE'S property. and all equipment and improvements erected hereunder shall comply, and during the term of.this.Lease, shall continue to comply with all building, life /safety, disability and other laws, codes and regulations of any applicable governmental or quasi - governmental authority. All such compliance shall be.accomplished at LESSEE'S sole cost and expense, LESSEE, at its sole cost and expense, shall maintain the. appearance of all such equipment and improvements in a manner or condition not materially different from that at the time of installation. E. This Lease and the performance hereof shall be governed, interpreted, construed and regulated by the laws of the State of Texas. Any litigation concerning this Lease shall be conducted in Tarrant County, Texas and the parties hereby agree to the venue and personal jurisdiction of these courts, F. This Lease, and each and every covenant and condition herein, is intended to benefit the Property and shall extend to and bind the heirs, personal representatives, successors and assigns of the parties. G. The parties agree that all of the provisions hereof shall be construed as both covenants and conditions the same as if the words importing such covenants and conditions had been used in each separate paragraph. H. The parties acknowledge that each has had an opportunity to review and negotiate this Lease and have executed this Lease only after such review and negotiation. The language of each part of this Lease- shall -be- construed simply and according to its fair- meaning,- and -this -Lease shall not-be- construed -- more strictly in favor or against either party. I. If any portion of this Lease is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion shall be deemed modified to the extent necessary in such court's opinion to render such condition enforceable and, as so modified, such portion and the balance of this Lease shall continue in full force and effect. J. In addition to the other remedies provided for in this Lease, LESSOR and LESSEE shall be entitled to immediate restraint by injunction of any violation of any of the covenants, conditions, or provisions of this Lease. K. The captions of the paragraphs of this Lease are for convenience of reference only and Page 16 of 19 shall not affect the interpretation of this Lease. L. In the event LESSEE has requested modifications to LESSOR'S form lease, this Lease shall not become effective unless LESSEE has reimbursed LESSOR for all professional fees related to review and approval of the modifications. M. Each party represents that it has not been represented by a broker in the approval process of this Lease. N. LESSOR agrees to execute a Memorandum of this Agreement which LESSEE may record with the appropriate recording officer. The date set forth in the Memorandum of Lease is for recording purposes only and bears no reference to commencement of either the Term or rent payments. The Memorandum of Agreement must accurately reflect the terms of this Lease. END OF ARTICLES IN WITNESS WHEREOF, LESSOR and LESSEE have duly executed this Lease as of the day and year first above written. ATTEST: LESSOR: CITY OF SOUTHLAKE, TEXAS By: Lori Payne LESSOR Secretary John Terrell Its: Mayor Date: LESSEE: CLEAR WIRELESS LLC. By: John A. Storch Its: VP. Network Deployment Date: qD _ o Approved as to City Attorney Page 17 of 19 ACKNOWLEDGMENT THE STATE OF 1 A LV4 COUNTY OF K Attl l BEFORE ME, the undersigned author' on this day personally appeared name), (title) of t a c poration, known tom to the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said a corporation, and that he/she executed the same as the act of such _ corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of , 2009. (OFFICIAL NOTARY SIGNATURE i ®/® NOTARY PUBLIC -STATE OF �: w f `elaltttt4t910 ��q, G € 4 (PRINTED, TfVEL ff4 hil?dl P AM OF NOTAV MY COMMISSION EXPIRES .tOt ata$d�� M� " zil © � �o 3 ! / III OF WAS , THE STATE OF TEXAS COUNTY OF TARRANT The foregoing instrument was acknowledged before me this day of 2009, by , of the City of Southlake on behalf of the City. He /she is personally known to me. 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