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Home My WebLink AboutCity of Tamarac Resolution R-2010-001Temp. Reso # 11737 November 18, 2009 Page 1 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2010- D/ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE AN AGREEMENT WITH CLEAR WIRELESS, LLC FOR THE INSTALLATION OF A HIGH SPEED WIRELESS (WIMAX) ANTENNA AND ASSOCIATED EQUIPMENT ON THE EXISTING TOWER AT THE CITY'S WATER TREATMENT PLANT PROPERTY; AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE ANY PERMIT APPLICATIONS AS MAY BE REQUIRED ON BEHALF OF THE CITY AS OWNER OF THE PROPERTY; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Clear Wireless. has requested a lease agreement for the installation of an antenna and associated equipment on the existing tower at the City's Water Treatment Plant Property; and WHEREAS, the proposed agreement is for five (5) years with five (5) automatic five (5) year extensions thereafter; and WHEREAS, WIMAX antennas in the City will enhance the quality of high speed mobile Internet access; and and WHEREAS, the Director of IT recommends approval of the agreement; and WHEREAS, it is the City Manager's recommendation to execute the agreement; WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be in the best interest of the citizens and residents of the City of Tamarac to authorize the appropriate City Officials to execute an agreement with Clear Wireless, LLC. for the installation of a WIMAX antenna on the existing 140 foot tower and associated equipment at the City's Water Treatment Plant Property. Temp. Reso # 11737 November 18, 2009 Page 2 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA: SECTION 1: That the foregoing "WHEREAS" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution. SECTION 2: The appropriate City Officials are authorized to execute an agreement with Clear Wireless, LLC. (attached hereto as "Exhibit 1") for the installation of a WI MAX antenna and associated equipment. SECTION 3: The appropriate City Officials are authorized to execute all permit applications as may be required, on behalf of the City as Owner of the property. SECTION 4: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. SECTION 5: If any clause, section, other part or application of this Resolution is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or application, it shall not affect the validity of the remaining portions or applications of this Resolution. 1 1 Temp. Reso # 11737 November 18, 2009 Page 3 SECTION 6: This Resolution shall become effective immediately upon its passage and adoption. PASSED, ADOPTED AND APPROVED this13 day of , 2010. Beth Flansbaum-Talc isco Mayor ATTEST: \ Record of COMMISSION VOTE: MARION SWENgbN, CMC MAYOR FLANSBAUM-TALABISCO CITY CLERK DIST 1: COMM BUSHNELL DIST 2: COMM ATKINS-G DIST 3: COMM GLASSER DIST 4: VM DRESSLER I HEREBY CERTIFY that I have approved this RESOLUTION as to form. Y'vpVj SA EL S. GOR pV CITY ATTORN 1 Cell Site: MIA5043 State: Florida County: Broward SITE LEASE AGREEMENT j0/6 THIS Lease is dated and entered into on 2999 ("Execution Date") between The City of Tamarac, a Florida municipal corporation with principal offlog located at 7525 NW 88`h Avenue, Tamarac, FL 33321 ("Landlord"), and Clear Wireless, LLC, a Nevada limited liability company with principal offices at 4400 Carillon Point, Kirkland, WA 98033 ("Tenant"). 1. Leased Pronerty and Permitted Uses. Landlord hereby leases to Tenant approximately 49 square feet (the "Ground Space") of certain real property (the "Property") shown by sketch and legal description on Exhibit "A" attached hereto, having a street address of 7801 N.W. 61st Street, Tamarac, Florida 33321. It is understood that Tenant intends to occupy exclusive space at the 75 foot level (the "Tower Space") on the Tower, Landlord further grants to Tenant for the term of the Lease, a non-exclusive easement (the "Easement") upon adjoining property owned by Landlord for the purposes of pedestrian and vehicular ingress and egress to and from an open and improved public road and for the installation and operation of utilities servicing the Property and for the construction, operation, and maintenance of all improvements thereon (the location of the Easement is also shown on Exhibit "A"). The Ground Space, the Tower Space and the Easement are collectively referred to as the "Leased Property." The Leased Property may be used for (i) the transmission and reception of communication signals, (ii) the construction, operation, alteration, maintenance, repair, replacement and relocation of related facilities, towers, antennas, equipment and buildings to provide Tenant and (iii) activities related to any of the foregoing (collectively, the "Tenant's Permitted Use"). Tenant acknowledges it is leasing ground space and tower space on a monopole, on city property, within a city owned compound. 2. Initial Term. The initial term of this Lease shall be 5 years, commencing 30 days after the execution date. The initial term of this Lease shall expire at Midnight on the day before the 5th anniversary of the Execution Date. 3. Renewal Terms. This Lease shall automatically renew for 5 additional five-year terms (each being a "Renewal Term"), unless Tenant notifies Landlord in writing of Tenant's intention not to renew this Lease at least 60 days prior to the expiration of the initial term or any Renewal Term. 4. Rent. Within thirty (30) days of the date on which Tenant obtains its building permit for the commencement of construction of Tenant's Antenna Facilities, as hereinafter -defined (the "Rent Commencement Date"), Tenant shall pay to Landlord the sum of Three Thousand Dollars 3 000) per month ("Rent"). Rent shall be payable within 5 days following each month of the Rent Commencement Date to Landlord at City of Tamarac, 7525 N.W. 88th Avenue, Tamarac, Florida 33321-2401, Attention: Finance Department. Landlord will provide the requisite information for Tenant to pay Rent by direct deposit to Landlord's bank, but the implementation of the direct deposit system shall be at Tenant's sole expense. On each Anniversary Date, Rent shall be increased to an amount equal to one hundred five percent (105%) of the annual Rent for the last twelve-month period immediately prior to the adjustment (exclusive of sales tax). If this Lease is terminated on a day other than the Anniversary Date, then Rent shall be prorated as of the date of termination, and in the event of termination for any reason other than nonpayment of Rent, all prepaid Rent shall be promptly refunded to Tenant. 5. Due Diligence Period. For 90 days from the Execution Date, Tenant and its agents, engineers, surveyors and other representatives shall have the right to enter upon the Property to conduct geological or engineering tests, apply for and obtain applicable governmental permits and approvals, and otherwise to do those things on or off the Property that, in the opinion of Tenant, are necessary to determine the feasibility or suitability of the Property for Tenant's Permitted Use, all at Tenant's expense ("Due Diligence Period"). Tenant shall not be liable to Landlord or any third party on account of any pre- existing defect or condition on or with respect to the Property, whether or not such defect or condition is disclosed by Tenant's inspection. If, in the sole and absolute opinion of Tenant, the Property is not suitable for Tenant's intended use, or Tenant determines that the operation of a communications facility on or within the Property would not be in Tenant's best interest, Tenant shall have the right at any time prior to the expiration of the Due Diligence Period to terminate this Lease by sending written notice of termination to Landlord. Thereafter, neither Landlord nor Tenant shall have any further obligation or liability under this Lease except as otherwise provided herein. 6. Interference, Page 1 of 7 Clearwire Execution Copy 11-23-2009 Page 1 of 7 A. Tenant shall not use the Property in any way that interferes with the use of the Property by Landlord, or by tenants or tenants of Landlord holding rights to the Property on the Execution Date of this Lease; provided, however, that Landlord hereby acknowledges that Tenant's use of the Property for Tenant's Permitted Use shall not constitute an impermissible interference by Tenant. Furthermore, Tenant shall operate the Antenna Facilities in a manner that will not cause interference to Landlord and other tenants or licensees of the Property. Landlord shall be able to terminate this Lease if Tenant's Antenna Facilities interferes with Landlord's equipment or interferes with any other third -party tenant or their equipment, provided that such third-party's equipment is installed as of the Execution Date, and provided that Tenant has been unable to eliminate such interference within thirty (30) days after receipt of notice of such interference from Landlord. If Landlord terminates this Lease pursuant to this Section, Tenant shall remove immediately its equipment from the Property. All operations by Tenant shall be in compliance with all Federal Communications Commission requirements. B. Subsequent to the Execution Date, Landlord shall not, and shall not permit its tenants or licensees to, install new equipment on the Property or property contiguous thereto owned or controlled by Landlord, if such equipment is likely to cause interference with Tenant's operations. Such interference shall be deemed a material breach by Landlord. In the event interference occurs, Landlord shall, upon being advised of such interference by the Tenant, notify the third party of such interference. In the event Landlord fails to comply with this paragraph, within 60 days, Tenant may terminate this Lease and/or pursue any other remedies available under this Lease, at law, and/or at equity. Improvements; Utilities; Access. A. Tenant shall have the right, at its expense, to install, construct, maintain, modify, supplement, replace and upgrade a communications facility on the Property, which may include radio transmitting and receiving antennas, equipment shelters and other improvements relating thereto (collectively the "Antenna Facilities") provided that the space of the equipment and the space occupied remains the same or less. All work by Tenant shall be performed in compliance with applicable laws and ordinances. Tenant is not authorized to contract for or on behalf of Landlord for work on, or the furnishing of materials to, the Property or any other part of the Property, and Tenant shall discharge of record by payment, bond or otherwise, within 10 days subsequent to the date of its receipt of notice thereof from Landlord, any mechanic's or construction liens filed against the Property for work or materials claimed to have been furnished at the instance of Tenant. B. Tenant shall, at Tenant's expense, keep and maintain the Leased Property in commercially reasonable condition and repair during the term of this Lease. The Antenna Facilities shall remain the exclusive property of Tenant, and Tenant shall have the right to remove all or any portion of the Antenna Facilities at any time during the term of this Lease. Within a reasonable period following the expiration of the term of this Lease (as such tern may be renewed from time to time in accordance with Section 3 above), Tenant shall (i) remove the Antenna Facilities and return the Leased Property to Landlord in visibly the condition existing as of the Execution Date, reasonable wear and tear excepted. C. Tenant shall, at Tenant's expense, cause the utilities servicing the Antenna Facilities to be separately metered. Further, Tenant shall have the right, at Tenant's expense, to install or improve utilities serving the Property (including, but not limited to, the installation of emergency power generators). D. Landlord shall provide Tenant with 24 hour, 7-day per week access to the Property for the installation, maintenance and operation of the Antenna Facilities and any utilities serving the Property. 8. Termination. This Lease may be terminated, without any penalty or further liability, as follows: A. by Landlord if Tenant fails to cure a default for payment of amounts due under this Lease within 30 days after Tenant's receipt of written notice of default from Landlord; B. by either party if the other party defaults (other than a default described in Section &A above) and fails to cure such default within 30 days after written notice of such default is received by the defaulting party from the non - defaulting party; provided, however, that if such default is capable of being cured, but not within such 30-day period, this Lease may not be terminated so long as the defaulting party commences appropriate curative action within such 30-day period and thereafter diligently prosecutes such cure to completion as promptly as possible; C. by Tenant on 30 days prior written notice if it is unable to obtain, maintain or otherwise forfeits or cancels any license, permit or governmental approval necessary for the construction or operation of the Antenna Facilities or Tenant's actual or intended use of the Property, or Tenant determines that it would be commercially unreasonable to obtain or maintain the same; and Page 2 of 7 Clearwire Execution Copy 11-23-2009 Page 2 of 7 D. by Tenant on 30 days prior written notice if Tenant determines, in its reasonable discretion exercised in good faith, that based on (i) technology, (ii) interference with use of the Property resulting from the acts of any third party, an act of God or from other natural forces or (iii) changes in system design or system usage patterns, Tenant's use of the Antenna Facilities (as the same may have been modified from time to time) is no longer consistent with the optimal operation of Tenant's communication system or such continued use would be commercially unreasonable. Casualty and Condemnation. A. If any part of the Antenna Facilities is damaged by fire or other casualty so as to prevent the continuation of Tenant's Permitted Use in a commercially reasonable manner, then Tenant may terminate this Lease by providing written notice to Landlord, which termination shall be effective as of the date of such damage and/or destruction. Upon such termination, Tenant shall be entitled to collect all insurance proceeds payable on account thereof and to be reimbursed for any prepaid Rent. B. If any part of the Property or the Antenna Facilities is taken by eminent domain, or by a deed in lieu of condemnation, so as to prevent the continuation of Tenant's Permitted Use in a commercially reasonable manner, then Tenant may terminate this Lease by providing written notice to Landlord, which termination shall be effective as of the date of the vesting of title in such taking. Upon such termination, Tenant shall be entitled to be reimbursed for any prepaid rent. Landlord and Tenant shall each be entitled to pursue their own separate awards with respect to any taking by eminent domain. 10. Taxes. Tenant shall pay to Landlord any applicable sales tax on the Rent, and Landlord shall be responsible for remitting such tax to the appropriate government entities. Tenant shall pay any personal and real property taxes assessed on, special assessments or any portion of such taxes attributable to, the Antenna Facilities. Landlord's Federal Tax ID # is 59-1039552 H. Insurance and Subroeation. Tenant will provide Commercial General Liability Insurance in an aggregate amount of $1,000,000 and name Landlord as an additional insured. Neither party shall be liable to the other (or to the other's successors or assigns) for any loss or damage caused by fire or any of the risks enumerated in a standard "All Risk" insurance policy, and, in the event of such insured loss, neither party's insurance company shall have a subrogated claim against the other. Each party shall obtain from its insurers under all policies of fire, theft and other casualty insurance covering the Property or any portion thereof, improvements thereon or operations therein, a waiver of all rights of subrogation which the insurer might have against the other party, and each party shall indemnify the other party against any loss or expense, including reasonable attorney's fees, resulting from the failure to obtain such waiver. 12. Hold Harmless. Tenant shall indemnify and hold Landlord harmless from and against injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys' fees and court costs) arising from the installation, use, maintenance, repair or removal of the Antenna Facilities or the breach of this Lease, except to the extent attributable to the negligent or intentional act or omission of Landlord, its employees, agents or independent contractors. Page 3 of 7 Clearwire Execution Copy 11-23-2009 Page 3 of 7 13. Notices. All notices, requests, demands and other communications hereunder writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by overnight carrier to the following addresses: To Landlord: City of Tamarac 7525 N.W. 88th Avenue Tamarac, Florida 33321-2401 ATTN: City Manager With a Copy To: City of Tamarac 7525 NW 88 Avenue Tamarac, FL 33321 ATTN: City Attorney To Tenant: Clear Wireless, LLC Attn: Site Leasing 4400 Carillon Point Kirkland, WA 98033 Telephone: 425-216-7600 Fax: 425-216-7900 E-mail: siteleasing a clearwire.com Legal notices only copy to: Clear Wireless, LLC Attn: Legal Department 4400 Carillon Point Kirkland, WA 98033 Telephone: 425-216-7600 Fax: 425-216-7900 14. Quiet Eniovment. Title and Authority. Landlord covenants and warrants that (i) it has full right, power and authority to execute this Lease and has the power to grant all rights hereunder; (ii) it has good, marketable and unencumbered title to the Property free and clear of any liens, mortgages, restrictions or other encumbrances that will interfere with Tenant's Permitted Use; (iii) its execution and performance of this Lease will not violate any laws, ordinances, covenants, or the provisions of any mortgage, Lease or other agreement binding on Landlord; (iv) Tenant shall have the quiet enjoyment of the Property, and Tenant shall not be disturbed as long as Tenant is not in default beyond any applicable grace or cure period; and (v) if the Property is encumbered by a deed to secure debt, mortgage or other security interest, Landlord will use its best efforts to provide promptly to Tenant a fully signed Subordination, Non -Disturbance and Attornment Agreement in a form acceptable to Tenant. 15. Environmental Laws. As used herein, the term "Environmental Laws" shall mean any and all local, state or federal statutes, regulations or ordinances pertaining to the environment or natural resources. As used herein, the term "Hazardous Substance- shall mean any toxic or hazardous waste or substance (including, without limitation, asbestos and petroleum products) that is regulated by Environmental Laws. Tenant represents, warrants and agrees that it will conduct its activities on the Property in compliance with all applicable Environmental Laws. Landlord represents, warrants and agrees that it has in the past and will in the future conduct its activities on the Property in compliance with all applicable Environmental Laws and that the Property is free of any Hazardous Substance as of the date of this Lease. Landlord shall be responsible for, and shall promptly conduct any investigation and remediation as required by any Environmental Laws or common law of, all spills or other releases of Hazardous Substance, not caused solely by Tenant, that have occurred or which may occur on the Property or surrounding property owned by Landlord. Tenant agrees that it will not use, generate, store, or dispose of any Hazardous Material on, under, about, or within the Land in violation of any law or regulation. Landlord represents, warrants, and agrees (1) that neither Landlord nor, to Landlord's knowledge any third party has used, generated, stored or disposed of, or permitted the use, generation, storage or Page 4 of 7 Clearwire Execution Copy 11-23-2009 Page 4 of 7 disposal of, any Hazardous Material on, under, about, or within the Land in violation of any violation of any law or regulation, and (2) that Landlord will not, and will not permit any third party to use, generate, store or dispose of any Hazardous Material on, under, about or within the Land in violation of any law or regulation. This paragraph shall survive the termination of this agreement. 16. Assignment and Subleasing. Tenant may assign this Lease and its rights hereunder to any person or business entity which is a parent, subsidiary or affiliate of Tenant; controls or is controlled by or under common control with Tenant; is merged or consolidated with Tenant; or purchases a majority or controlling interest in the ownership or assets of Tenant. Tenant may not otherwise assign this Lease without Landlord's written consent, which consent shall not be unreasonably withheld or delayed. Tenant may not sublease the Lease Property. Upon notification to Landlord by Tenant of a permitted assignment of this Lease, Tenant shall be relieved of all future performance, liabilities and obligations under this Lease. 17. Successors and Assigns. This Lease shall run with the Property and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. 18. Landlord's Lien. Landlord hereby waives any and all lien rights it may have, statutory or otherwise, concerning the Antenna Facilities or any portion thereof. The Antenna Facilities shall be deemed personal property for purposes of this Lease, regardless of whether any portion thereof is deemed real or personal property under applicable law. 19. Miscellaneous: A. Each party agrees to furnish to the other, within 45 days after request (subject to City Commission scheduling), such truthful estoppel information as the other may reasonably request. Furthermore, each party shall cooperate in executing any other documents (including a Memorandum of Lease, easement agreement, or both) necessary to protect a party's rights hereunder. Neither party shall record this Lease, but may record the aforementioned Memorandum of Lease. B. Each party represented in this transaction by a broker, agent or commission salesperson shall be fully and exclusively responsible for the payment of any fee, commission or other compensation owing to such person, and shall indemnify and hold the other party harmless from and against any claims arising in connection therewith. C. Without limiting the terms of Section 8, if either party fails to perform a material obligation "under this Lease within 30 days after receiving written notice from the other party, the party that delivers such notice may perform such obligation or take other appropriate curative action on behalf and at the expense of the nonperforming party. If the curative action is taken by Tenant, the expenses may be offset against the next payment(s) of Rent. If the curative action is taken by Landlord, the expenses shall be paid by Tenant together with the next payment of Rent. D. The parties acknowledge that a substantial portion of negotiations and anticipated performance and execution of this Lease occurred or shall occur in the State of Florida. Any civil action or legal proceeding arising out of or relating to this Lease shall be brought in the Circuit Court of the State of Florida in Broward County. Each party consents to the jurisdiction of such court in any civil action or legal proceeding, and waives any objection to the laying of venue of any such civil action or legal proceeding in such court. Service of any court paper may be effected on such party by mail, as provided in this Lease, or in such other manner as may be provided under applicable laws, rules of procedure or local rules. E. This Lease constitutes the entire agreement and understanding of the parties with respect to the Property and subject matter hereof, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendment to this Lease must be in writing and executed by both parties. F. Landlord acknowledges that a Memorandum of Agreement in the form annexed hereto as Exhibit B will be recorded by Tenant in the official records of the County where the property is located. In the event the Property is encumbered by mortgage or deed of trust, Landlord agrees to obtain and furnish to Tenant a non -disturbance and attomment instrument for each such mortgage or deed of trust. G. Tenant may obtain title insurance on its interest in the Premises. Landlord shall cooperate by executing documentation required by the title insurance company. H. In accordance with Florida law, the following notice is hereby given to Tenant: "RADON GAS: RADON 1S A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITY, MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN Page 5 of 7 Clearwire Execution Copy 11-23-2009 Page 5 of 7 FOUND IN BUILDINGS IN FLORIDA. ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT". The undersigned Tenant acknowledges having read the foregoing notification, and has executed this Lease fully aware of the aforementioned conditions. 20. Tower Markin¢ and Liehtine Requirements. Landlord acknowledges that it, and not Tenant, shall be responsible for compliance with all Tower marking and lighting requirements of the Federal Aviation Administration ("FAA") and the FCC. Should Tenant be cited by either the FCC or FAA because the Tower is not in compliance and should Landlord fail to cure the conditions of noncompliance within the time frame allowed by the citing agency, Tenant may terminate this Agreement immediately on notice to Landlord or proceed to cure the conditions of noncompliance at Landlord's expense, which amounts may be deducted from the Rent. 21. Governmental Approvals. It is understood that it shall be the Tenant's sole responsibility to obtain, at Tenant's sole cost and expense, any and all permits, consents and approvals from local, state or federal government authorities as required by Tenant to construct and operate Tenant Facilities (collectively, the "Governmental Approvals"). Landlord agrees to cooperate with the Tenant at no cost to the Landlord and to execute such documents reasonably required to obtain the Government Approvals, with the exception of the approvals required from the City of Tamarac. The making of this Agreement does not constitute an abrogation of the Landlord's governmental land development regulatory power, and the Tenant's performance is contingent upon all such development approvals being obtained. Should the City of Tamarac or another governmental authority agency with jurisdiction not approve any required application for development approval, prerequisite to the installation or operation of the Tenant Facilities, this Agreement shall automatically become null and void as if the same never existed and so as to not to be the basis in any respect for a damage claim as a result of such denied development order. 22. Compliance with Laws. Landlord represents that Landlord's property (including the Site), and all improvements located thereon, are in compliance with building, life/safety, disability, and other laws, codes and regulations of applicable government authorities. Tenant will comply with all applicable laws relating to its possession and use of the Site. 23. Venue. This agreement shall be governed by the laws of the State of Florida as now and hereafter in force. The venue for actions arising out of this agreement is fixed in Broward County, Florida. Remainder of the page intentionally left blank Page 6 of 7 Clearwire Execution Copy 11-23-2009 Page 6 of 7 Wherefore, the parties hereby enter into this Lease as of the date first set forth above: LANDLORD: Beth Talabisco, Mayo Date: A= . : af ��effrenMiller, City Manager Marion.Swens�n, CM , City Clerk Date: Date:�`7//a App ov d as to form and legal sufficiency w AV, >Z' 171a9 SaXGoren, City Atey TENANT: ATTEST: Clear WjKNss, LLC. Corporate Secretary VP/G f!ral`I anager — 6� SEfl Type/Print Name of Corporate Secretary Type/Print Name (CORPORATE SEAL) 1 2-l 10 / 0 Date Page 7 of 7 Clearwire Execution Copy 11-23-2009 Page 7 of 7 EXHIBIT "A" To the Site Lease Agreement dated 2009 between THE CITY OF TAMARAC, as Landlord, and Clear Wireless, LLC., as Tenant. The Ground Space is a 7'X7' area, together with a non-exclusive easement for the purpose of vehicular ingress and egress and installation and operation of utilities, identified by the cross hatched area on the sketch below and which is located within the real property described below: A PORTION OF SECTION 6, TOWNSHIP 49 SOUTH, RANGE 41 EAST, BROWARD COUNTY, FLORIDA AND TOGETHER WITH PORTION OF FLORIDA FRUIT LANDS COMPANY SUB -DIVISION NO. 2 OF SECTION 5, TOWNSHIP 49 SOUTH, RANGE 41 EAST ACCORDING TO THE PLAT THREOF, AS RECORDED IN PLAT BOOK1, PAGE 102 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING MORE FULLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 6, THENCE S 00° 06 '44" E, ALONG THE EAST LINE OF SAID SECTION 6. A DISTANCE OF 3274.80 FEET TO THE POINT OF BEGINNING, THENCE S 60° 29' 53" E. A DISTANCE OF 54.53 FEET, THENCE S 40' 27' 22" W. A DISTANCE OF 575.19 FEET, THENCE S 08° 32' 22" W. A DISTANCE OF 335.00 FEET TO AN INTERSECTION WITH THE ARC OF A CINGULAR CURVE TO THE RIGHT, WHOSE RADIUS POINT BEARS, N 08° 32' 22" E. FROM THE LAST DESCRIBED POINT, THENCE WESTERLY AND NORTHERLY, ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF 1600.00 FEET, AN ARC DISTANCE OF 45.10 FEET TO THE POINT OF TANGENCY, THENCE N 79° 50' 44" W, A DISTANCE OF 571.66 FEET TO AN INTERSECTION WITH THE ARC OF A CINGULAR CURVE TO THE RIGHT, WHOSE RADIUS POINT BEARS S 78` 52' 09" E. FROM THE LAST DESCRIBED POINT, THENCE NORTHERLY AND EASTERLY, ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF 2347.00 FEET, AN ARC DISTANCE OF 752.53 FEET TO THE POINT OF TANGENCY, THENCE N 29° 30' 07" E. A DISTANCE OF 342.76 FEET, THENCE S 60° 29' 53" E. A DISTANCE OF 636.24 FEET TO THE POINT OF BEGINNING. CONTAINING 14.118 ACRES. MORE OR LESS. SAID LAND SITUATED, LYING AND BEING IN BROWARD COUNTY, FLORIDA A PORTION OF SECTION 6, TOWNSHIP 49 SOUTH, RANGE 41 EAST, BROWARD COUNTY, FLORIDA AND TOGETHER WITH PORTION OF FLORIDA FRUIT LANDS COMPANY SUB -DIVISION NO. 2 OF SECTION 5, TOWNSHIP 49 SOUTH, RANGE 41 EAST ACCORDING TO THE PLAT THREOF, AS RECORDED IN PLAT BOOK1, PAGE 102 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING MORE FULLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 6, THENCE S 00" 06'44" E, ALONG THE EAST LINE OF SAID SECTION 6. A DISTANCE OF 3357.12 FEET TO THE POINT OF BEGINNING, THENCE S 40° 27' 22" E. A DISTANCE OF 72.90 FEET, THENCE S 12' 50' 25" W. A DISTANCE OF 765.82 FEET TO AN INTERSECTION WITH THE ARC OF A CINGULAR CURVE TO THE RIGHT, WHOSE RADIUS POINT BEARS, N 12° 50' 25" W. FROM THE LAST DESCRIBED POINT, THENCE SOUTHERLY AND WESTERLY, ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF 1600.00 FEET, AN ARC DISTANCE OF 597.03 FEET, THENCE N 08' 32' 22" E. A DISTANCE OF 335.00 FEET, THENCE N 40° 27' 22" E. A DISTANCE OF 502.29 FEET TO THE POINT OF BEGINNING. CONTAINING 6.549 ACRES. MORE OR LESS. SAID LAND SITUATED, LYING AND BEING IN BROWARD COUNTY, FLORIDA Page 1 Clearwire Site No.: MIA5043 Execution Copy 11-23-2009 —1 n Q m z�n 2 C � i v o ❑ "'Jiii! # Fm=❑ ` �i F Ip�I fZc r z G v� Atig �\ / z 7g z^w' N m < v �' I gg m a 3 &aAmo X� aL! D o 2 Y $u mA N O � 'A V EXHIBIT "B" MEMORANDUM OF AGREEMENT ;6i6 This Memorandum of Agreement is entered into on this /J day of 2999'by and between CITY OF TAMARAC, a Florida municipal corporation, with an addre at 7525 NW 881h Avenue, Tamarac, FL 33321-2401 (hereinafter referred to as "Landlord") and Clear Wireless, a Nevada limited liability company with principal offices at 4400 Carillon Point, Kirkland, WA 98033 ("Tenant"). Landlord is the owner of a parcel of land located in Broward County, Florida, described in the attached Exhibit "A" ("Land"). Landlord and Tenant entered into a Communication Site Lease Agreement ("Lease") on the day of 2009 for a portion of the Land ("Premises") together with the non-exclusive right, privilege, and easement over and across a portion of the Land for access and utility service thereto, described in the attached Exhibit "A", for the purpose of installing, operating, and maintaining a radio communications facility and other improvements. The term of the Lease is for five (5) years commencing on , 2009, and ending on , 2014 with five (5) successive (5) year options to renew. Landlord shall not permit itself, its Tenant, or licensees, to install new equipment on the Land if such equipment causes interference with Tenant's operations. Nothing contained herein is intended to or does change, modify, or affect, any of the terms or provisions of the Lease or the rights, duties, obligations, easements, and covenants running with the land created thereby, all of which remain in full force and effect. IN WITNESS WHEREOF, the parties have made and executed this Memorandum of Agreement on the respective dates under each signature. CITY OF TAMARAC, through its Mayor and City Manager, signing by and through both duly authorized to execute same. WITNESSES: LANDLORD: CITY OF TAMARAC, a Florida municipal corporation ty?W (E A 3B l�it/DA�t/DO By: Y�� L! Name: Beth Talabisco Title: Mayor Date: By-,;2�, 4. \ Name: Afreyd. Miller v Title: City Manager 3 Date: Clearwire Site No.: MIA5043 Execution Copy 11-23-2009 Page 1 of 2 ATTEST: ' By VM +\ l/=' N4We: Marion Swenson Title: City Clerk �g�� Dates � WITNESSES: STATE OF FLORIDA COUNTY OF BROWARD APPROVED AS TO FORM AND LEGAL SUFFICE E ICY: By: _ Name: am Go en Title: ity Attorney Date: l/ ' d TENANT: Clear Wire s, LLC By: , -6, Name: 1— Title: Date: The foregoing instrument was acknowledged before me this `1316(day roc Sehie4 , the Mayor of the City of Tamarac, a Florida municipal co �tonon Tamarac, who is personally known to me or who has produced 1l as pia a��i�46esro 2", by Joe of the City of NOTARY PUBLIC -STATE OF FLORIDA C�f� Tina M. Wheatleyy Notary Public Commission # DD581925 My commission expires: Expires: AUG. 06, 2010 BONDED THRU ATI ANHC BONDING CO., INC. STATE OF FLORIDA COUNTY OF BROWARD ��lJ The foregoing instrument was acknowledged before me this 13aday of 400 by Jeffrey L. Miller, the City Manager, of the City of Tamarac, a Florida munici I corporate , on behalf of the City of Tamarac, who is personally known to me or who has produced a itJ%,g as identification. NOTARY PUBLIC -STATE OF FLORIDA Tina M. Wheatley . Commission # DD581925 Notary Public �;,••' Expires: AUG. 06, 2010 My commission expires: BONDED THRU ATLANTEC BONDING CO., INC. STATE OF COUNTY OF t-TbrJ g day of vwL�'l 2009, The fibregoinstr'ument waste nowled ed before me this by in "",,.,(TITLE) of Clear Wireless, LLC., on behalf of the corporation, who is perso,y My k ♦ n q o odu ,d a as identification. ! , T .goQ t EXPIto RES Notary Public GEORGIA My commission expires: • DEC. 7, 2010 % Clearwire Sitk No.:.v1 '••••••••'. \ �� Execution Copy 11-21 N CO,,♦ Page 2 of 2