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WIRELESS COMMUNICATION FACILITY AGREEMENT BETWEEN CITY OF MOSCOW, IDAHO AND CLEARWIRE LLC RESIDENCE STREET WATER TOWER THIS Agreement is made and entered into, this 30 day of Septemb-er_, 2005, by and between CITY OF MOSCOW, IDAHO a municipal corporation of the state of Idaho, (hereinafter called "CITY") and CLEARWIRE LLC, a Nevada limited liability company, (hereinafter "CLEARWIRE"), and for good and valuable consideration the parties agree as follows: SECTION 1: Property. Subject to the following terms and conditions, CITY allows and permits CLEARWIRE to use certain designated space on one of CITY'S water towers and certain designated space adjacent to that water tower for the purposes set forth in Section 2 of this Agreement. The location of CITY'S water tower and the adjacent space for the use permitted herein is more particularly described in Exhibit attached hereto. SECTION 2: Permitted Use. CLEARWIRE may construct, operate, maintain, repair, and remove a wireless communication facility (WCF) on the property more particularly described in Section 1 herein. The WCF will include the following components: a. Ancillary Equipment Lease Area - A five foot by seven foot ancillary equipment lease area containing radio cabinets, power and telephone connections and a utility meter. b. Antennas- Four panel antennas (of approximate dimensions of 4'4" x 14" x 4" each) and two microwave antennas and associated coaxial cable connection to the ancillary equipment. Antennas are to be mounted in a manner approved by CITY. Isolation rubber shall be approved by CITY prior to installation. Antenna cables are to be attached to the tank in a manner approved by CITY. Cables and brackets shall be located in areas that will not unduly interfere with the cat-walk or the ladder. All work to be done by a contractor approved by CITY. c. Underground power line and related components. The location and orientation of CLEARWIRE'S space on CITY'S water tower and the property adjacent to CITY's water tower is as shown on Exhibit attached hereto. SECTION 3: Term. The initial term of this Agreement shall be for five years, commencing the date of the execution of this Agreement by both parties and terminating at midnight on the last day of the month in which the fifth annual anniversary of the commencement date shall have occurred. Subject to CITY'S approval, CLEARWIRE shall have the right to renew this Agreement for four additional five year periods upon the same terms and conditions contained in this Agreement. The sums payable for usage of the tower and the property adjacent thereto shall be adjusted at the end of each five year period for the ensuing five year period as set forth in Section 4.2. Permission issued under this Agreement shall automatically be renewed as set forth unless CLEARWIRE shall notify CITY of its intention not to renew this Agreement at least sixty (60) calendar days prior to the expiration of the initial term or expiration of any renewal term. follows: SECTION 4 Fee. The fee under this Agreement shall consist of a monetary fee as CLEARWIRE -RESIDENCE STREET WATER TOWER Page 1 of 9 2005-50 ---PAGE BREAK--- 4.1 Annual Monetary Fee. Upon the commencement date. CLEARWIRE shall pay to CITY the sum of Eight Thousand, One Hundred and Ninety Dollars 190.00) per year and thereafter a like sum on each anniversary date during the initial term of this Agreement 4.2 Monetary Fee Adjustments. The annual monetary fee shall be increased annually by an amount equal to three percent of the annual monetary fee for the proceeding year. SECTION 5 Recovery of Costs. CLEARWIRE shall 5.1 Reimburse CITY for any and all costs CITY reasonably incurs in responding to any emergency caused by CLEARWIRE'S WCF. 5.2 Reimburse CITY for its proportionate share for all expenses and costs, including CITY personnel salary and benefits, incurred by CITY in planning, constructing, installing, repairing or altering any CITY facility which becomes reasonably necessary as the result of the presence of the WCF permitted by this Agreement SECTION 6 CLEARWIRE'S Responsibilities. 6.1 CLEARWIRE agrees to comply with Moscow City Code Section 4-6-14 and Resolution No. 2001-02, as those currently exist and any amended Moscow City Code Section 4-6-14 and related CITY Resolutions existing at the time of subsequent renewals of this Agreement relating to the safety of the public and employees of CITY or of CLEARWIRE; provided that if CLEARWIRE seeks to modify or change its WCF requiring compliance with CITY'S Zoning Code, then its WCF shall meet the then existing requirements relating to its WCF. 6.2 CLEARWIRE shall pay all costs involved in the construction, operation, maintenance, repair, and removal of the WCF permitted under this Agreement CLEARWIRE shall have a representative inspector on-site during the installation process, including when work is being done by any subcontractor. 6.3 CLEARWIRE shall comply with all applicable CITY, county, state, and federal laws, ordinances, and regulations regarding the use permitted under this Agreement; and, obtain all appropriate permits, approvals. and certifications at CLEARWIRE'S own expense. 6.4 CLEARWIRE shall not do anything or allow anything to be done on the property described in Section I and CITY'S water tank located thereon which would in any way compromise the integrity of CITY'S water tank or CITY'S water system. Prior to construction of the WCF or any associated component, CLEARWIRE will submit for review and approval by the Public Works Director or Designee plans and specifications for the proposed work. 6.5 Whenever construction, maintenance, repair, operation, or removal of the WCF or other facilities authorized by this Agreement has caused or contributed to a condition that appears to the Public Works Director or Designee to impair or endanger CITY property or utilities. the Public Works Director or Designee may direct CLEARWIRE, at CLEARWIRE'S own CLEAR\NIRE -RESIDENCE STREET WATER TOWER Page 2 of 9 ---PAGE BREAK--- expense, to take action to protect CITY property or CITY utilities. Such action may include compliance within such time as may be prescribed by the Public Works Director or Designee. The prescribed time will be reasonable and related to the seriousness of what needs correcting both of which will be determined solely by the Public Works Director or Designee. In the event that CLEARWIRE fails or refuses to take the actions directed by the Public Works Director or Designee; or fails to fully comply with such directions; or if emergency conditions exist which require immediate action, CITY may enter upon CLEARWIRE'S WCF, located on the property described in Section I, and take such actions as CITY in its sole discretion considers appropriate in order to protect CITY property or its utilities and CLEARWIRE shall be liable to CITY for the costs thereof. 6 6 This Agreement contemplates that both CITY and CLEARWIRE will from time to time need to do maintenance on their respective facilities. It further contemplates that mutual reviews of plans for construction or maintenance will occur in order to coordinate and accommodate such work and maintenance. Consistent with this approach, CLEARWIRE shall take any and all steps necessary to allow CITY to carry out ongoing required maintenance in an efficient and safe manner. For example, during painting of the tank, this requirement could include covering possible extra costs for the contractor to deal with the antennas and cable on the tank, or the temporary removal of all antennas and cables to allow such maintenance to occur at the discretion of the CITY and at CLEARWIRE'S sole cost. Any required work on CITY components such as protection, removal, or relocation to allow maintenance of CLEARWIRE'S facilities will be done only with the prior approval of the Public Works Director or Designee at no cost to CITY. The present essential function of this CITY property, as noted in Section 8 of this Agreement, is the storage and conveyance of CITY potable water supplies. The approval of CLEARWIRE'S plans for a WCF and associated components on this water tank property will be based on currently adopteo long-range planning. Even so, over time, the needs of CITY may change and thus other functions may be added or exchanged for the existing function to maintain essential services to the citizens of Moscow. However, in the event CITY requires either temporary or permanent relocation of CLEARWIRE'S WCF or any of its components, in order to maintain or carry out any or all of the essential CITY functions of the site, including any decision to demolish or remove the tank, CLEARWIRE shall make such changes at CLEARWIRE'S sole expense. CITY will, to the extent practical in non-emergency situations, provide CLEARWIRE with a written request for relocation changes at least one hundred eighty (180) calendar days in advance. 6.7 CLEARWIRE shall be solely responsible for inspecting the ladder system on CITY'S water tower for safety before allowing its employees or contractors to use the ladder system. CITY DOES NOT MAKE AND WILL NOT MAKE ANY REPRESENTATION WHATSOEVER AS TO THE SAFETY CONDITION OF THE LADDER SYSTEM ON CITY'S WATER TOWER FOR THE PURPOSE OF THE USE INTENDED BY CLEARWIRE OR ANYONE ACTING FOR OR ON BEHALF OF CLEARWIRE. 6.8 Under-grounding of electrical service to serve the WCF permitted under this Agreement is required by this Agreement on the properlf described in Section CLEARWiRE -RESICENCE STREET WATER TOWER Page 3 of9 ---PAGE BREAK--- I and in the public right-of-way serving the entrance to said property All costs of obtaining electrical service to the WCF and the under-grounding thereof as herein required shall be the sole obligation of CLEARWIRE and not CITY The location of the electrical service meter shall be approved by CITY. SECTION 7: Ingress and Egress Rights. 7.1 CITY grants to CLEARWIRE, a nonexclusive right for ingress and egress across CITY's property described in Section I, subject to twenty-four (24) prior written notice to CITY for scheduled or routine maintenance, construction. servicing, and/or repair Such twenty-four (24) hours prior written notice to CITY does not apply to emergencies. In case of an emergency, CLEARWIRE shall notify CITY of entry as soon as practicable following CLEARWIRE'S first notice of such emergency. 7.2 CLEARWIRE, upon written permission from Public Works Director or Designee, may, at CLEARWIRE'S own cost, make such improvements as it may deem necessary in and to any access way controlled by CITY used for access to and egress from the WCF. CLEARWIRE shall, at its own cost, repair to CITY standards any damage resulting from its use. 7.3 Should CLEARWIRE require the assistance of CITY or the presence of CITY employees, agents, contractors, or subcontractors, in support of construction, maintenance, servicing, repair, and/or removal of its WCF, CLEARWIRE shall compensate CITY for costs and services rendered by CITY. 7.4 CITY retains the right to enter into its property and onto the subject Water Tower at any time without notice to CLEARWIRE of CITY'S intent to so enter. Nothing in this Agreement shall limit or be interpreted to limit the CITY'S right to access to its own property or to appurtenances, attachments or fixtures thereto. 7.5 CLEARWIRE shall, at all times other than during an emergency, require the presence of a CITY employee when performing any services which require CLEARWIRE to be physically present on the subject tower. SECTION 8 Nonexclusive Grant This Agreement and the permission granted hereunder shall not in any manner prevent CITY from entering into other agreements for uses similar to the use herein permitted or prevent CITY from granting or entering into other agreements for uses on, under, across, or over the property described in Section I of this Agreement whether or not those uses be similar to the use permitted by this Agreement This Agreement shall in no way prevent or prohibit CITY from using said property as CITY in its sole discretion considers appropriate, or affect its jurisdiction over it CITY shall retain the exclusive power to make all necessary changes, relocations, repairs, maintenance, establishment, and improvement of and to CITY facilities within said property. It is understood that the primary use of the CITY'S water tower is a public use, which is to provide water to water users, and CLEARWIRE'S use of the CITY'S water tower is secondary and subordinate to that public use. It is further understood that any agreements entered into by the CITY and parties not a party to this Agreement will not unreasonably interfere with the use permitted to CLEARWIRE under this Agreement CLEARW:RE -RESIDENCE STREET WATER TOWER Page 4 of9 ---PAGE BREAK--- SECTION 9: Insurance CLEARWIRE shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges and authority granted hereunder to CLEARWIRE, its agents, representatives or employees. Throughout the term of this Agreement, CLEARWIRE shall provide an insurance certificate, together with an endorsement naming CITY, its officers, elected officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the CITY for its inspection and approval prior to the commencement of any work or installation of any facilities pursuant to this Agreement, and such insurance certificate shall evidence: 9a. Automobile Liability insurance with limits no less than One Million Dollars ,000,000) Combined Single Limit per accident for bodily injury and property damage; and 9b. Commercial General Liability insurance, written on an occurrence basis with limits no less than One Million Dollars ,000,000) combined single limit per occurrence and Two Million Dollars ($2,000,000) aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations; broad form property damage; explosion, collapse and underground (XCU); and employer's liability. The above coverage may be provided, in part, through an umbrella policy, with the approval of CITY. Any self-insured retention must be declared to and approved by CITY. Payment of deductible or self-insured retention shall be the sole responsibility of CLEARWIRE. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, elected officials, agents, employees, representatives, consultants or volunteers. In addition, the insurance policy shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. CLEARWIRE'S insurance shall be primary insurance as respects CITY, its officers, officials, employees, and volunteers. Any insurance maintained by CITY for or by its officers, officials, employees or volunteers shall be in excess of CLEARWIRE'S insurance and shall not contribute with it The insurance policy or policies required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to CITY. The insurance certificate shall contain language evidencing these requirements. SECTION 1 0 Indemnification. CLEARWIRE hereby releases CITY and covenants not to bring suit and agrees to indemnify, defend, and hold harmless CITY, its officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person, including claims by CLEARWIRE'S own employees to which CLEARWIRE might otherwise be immune, arising from the installation, use, operation, maintenance, repair, interruption of service, or removal of CLEARWIRE'S WCF permitted under the terms of this Agreement except for claims based on the sole negligent and intentional acts of CITY, EXCEPT THAT CLEARWIRE SHALL HOLD CITY HARMLESS AND INDEMNIFY IT AGAINST ANY LOSS FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE LADDER SYSTEM ON CITY'S WATER TOWER BY ANYONE (WHEN REQUESTED BY CLEARWIRE) TO INSTALL, USE, MAINTAIN. REPAIR. OR REMOVE CLEARWIRE -RESIDENCE STREET WATER TOWER Page 5 of9 ---PAGE BREAK--- THE ANTENNA FACILITIES OF CLEARWIRE'S WIRELESS COMMUNICATION FACILITIES. CLEARWIRE expressly agrees that this indemnity provision extends to any and all claims for injury, sickness, or death of any person, including employees of CLEARWIRE, arising out of or caused by electro-magnetic emissions from CLEARWIRE'S equipment This indemnity shall not extend to emissions shown to be caused by any other electro-magnetic source. This shall be interpreted as a WAIVER of immunity under the workers compensation laws of the State of Idaho, which has been negotiated between the parties. Inspection or acceptance by CITY of any work performed by CLEARWIRE at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. SECTION 11 Taxes. CLEARWIRE shall pay all taxes and assessments, including leasehold excise taxes. if any, which may be assessed and become due and payable upon CLEARWIRE's WCF on the property. It is the intention of the parties hereto that the WCF described in Section 2, and any building, fence, or other improvements of CLEARWIRE'S on the property described in Section I, shall be deemed between the parties to be personal property of CLEARWIRE. Upon the expiration of this Agreement CLEARWIRE shall remove all of such property and restore the property described in Section I to its former condition, excepting normal wear and tear. SECTION 12: Failure to Construct Facility- Termination. If CLEARWIRE is unable, through no fault of it's own, to obtain within one year after the execution of this Agreement by both parties all necessary permits, authorizations, and government approvals to construct and operate the WCF, CLEARWIRE may, by sending written notice directed as specified in Section 16, terminate this Agreement CLEARWIRE will remove any property it has placed on the property designated in Section I, and restore the premises to its previous condition, whereupon the parties shall be under no further obligation to each other. Failure to begin construction within six months of the commencement date established in Section 3 and to complete construction in a timely manner shall be basis for termination of the Agreement by CITY, provided that such time limit shall not apply to delays caused by acts of God, strikes, or other occurrences over which CLEARWIRE has no control. SECTION 13: Right to Terminate Agreement-. CLEARWIRE shall have the right to terminate this Agreement at any time after the commencement date established in Section 3 upon giving CITY sixty (60) calendar days notice directed as specified in Section 16. CLEARWIRE shall remove all of its property and return the land and CITY'S water tower described in Section 2 to its original state, excepting normal wear and tear, within the sixty (60) calendar day period. If CLEARWIRE terminates this Agreement on a day other than an annual anniversary date, CLEARWIRE shall receive a pro-rata refund of the prepaid annual fee calculated from the date upon which CLEARWIRE removes its WCF from the property and the property is restored to its previous condition by CLEARWIRE. SECTION 14 Termination and Forfeiture. If CLEARWIRE fails to cure any monetary default within ten (10) days of receipt of notice, or fails to cure any non-monetary default within thirty (30) days of receipt of notice, provided that if default cannot reasonably be cured within said thirty (30) day period, WIRELESS PROVIDER will not be in default if it commences to cure the default within said thirty (30) day period and diligently pursues the cure to completion, then at the election of the Moscow City Council, and after a hearing held upon reasonable notice to CLEARWIRE, this Agreement may be terminated by CITY, and CLEARINIRE -RESIDENCE STREET WATER TOWER Page 6 of 9 ---PAGE BREAK--- CLEARWIRE shall forfeit all rights conferred hereunder and shall restore the property described in Section I and CITY'S water tower to its original condition. The Council may decide, after consideration of the reasons for CLEARWIRE'S failure to comply with the Agreement, to allow CLEARWIRE additional time to cure before such termination. This termination provision is in addition to CITY'S right to demolish or remove the water tank or declare the property surplus contained in Paragraph 6.6. If CITY fails to perform any of its obligations under this Agreement within thirty (30) days after delivery of written notice of such failure to perform, CLEARWIRE shall have the right to terminate this Agreement, or pursue any other remedy available at law or in equity. SECTION 1 5: Remedies to Enforce Compliance. In addition to any other remedy provided herein, CITY reserves the right to pursue any remedy to compel or force CLEARWIRE and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by CITY shall not prevent CITY from thereafter declaring a forfeiture or revocation for breach of the conditions herein. CITY: SECTION 16 Notices. All written notices shall be directed to: City of Moscow Attn: Public Works Director P 0 Box 9203 Moscow, ID 83843 CLEARWIRE Clearwire Lease and Contracts Manager 5808 Lake Washington Blvd. NE, Ste. 300 Kirkland, WA 98033 Delivery of said notice shall be effected in any one of the following manners a. By personal delivery to and acknowledgment of receipt thereof signed by the receiving party. b. By depositing the notice in the United States mails, in an envelope properly addressed to the address indicated above with postage fully prepaid thereon and mailed certified, return receipt requested. In the event said notice is mailed, it shall be deemed delivered seven days following the deposit thereof in the United States mails. SECTION 17: Assignment. CLEARWIRE may assign this permit upon written notice CITY, provided CLEARWIRE is not in default, to any person or business entity which is authorized pursuant to and licensed by the FCC to operate a wireless communications business, is a parent, subsidiary or affiliate of CLEARWIRE, is merged or consolidated with CLEARWIRE or purchases more than fifty (50) percent of either an ownership interest in CLEARWIRE or the assets of CLEARWIRE in the "Metropolitan Trading Area" or "Basic Trading Area" (as those terms are defined by the FCC) in which the property is located Upon such assignment, CLEARWIRE shall be relieved of all liabilities and obligations hereunder CITY shall look solely to the assignee for performance under this Agreement and all obligations herein. CLEARWIRE -RESIDENCE STREET WATER TOWER Page 7 of9 ---PAGE BREAK--- Additionally, provided CLEARWIRE is not in default, CLEARWIRE may, upon notice to CITY, mortgage or grant a security interest in the permission granted under this Agreement and the WCF, and may assign the permission granted under this Agreement and the WCF to any mortgagees or holders of security interests, including their successors or assigns, (hereinafter collectively referred to as "Mortgagees"), provided such Mortgagees agree to be bound by the terms and provisions of the permission granted under this Agreement In such event, CITY shall execute such consent to financing as may reasonably be required by Mortgagees. CITY agrees to notify CLEARWIRE and CLEARWIRE'S Mortgagees simultaneously of any default by CLEAR WIRE and to give Mortgagees the same right to cure any default as CLEARWIRE or to remove any property of CLEARWIRE or Mortgagee located on the premises, except that the cure period for any Mortgagee shall not be less than thirty (30) days after receipt of the default notice, as provided in Section 1 6 of this Permit, provided there is no default. All such notices to Mortgagees shall be sent to Mortgagee at the address specified by CLEARWIRE Failure by CITY to give Mortgagee such notice shall not diminish CITY'S rights against CLEARWIRE, but shall preserve all rights of Mortgagee to cure any default and to remove any property of CLEARWIRE or Mortgagee located on the Premises, as provided in Section 14 of this Permit. SECTION 1 8: Venue Stipulation. This Agreement shall be construed as having been made and delivered within the state of Idaho, and it shall be mutually understood and agreed by each party hereto that this Agreement shall be governed by laws of the state of Idaho, both as to interpretation and performance. Any action at law, suit in equity, or judicial proceeding for the enforcement of this Agreement or any provisions thereof shall be instituted and maintained only in a court of competent jurisdiction in Latah County, Idaho. SECTION 19: Extent of Agreement This Agreement contains all the terms and conditions agreed upon by the parties hereto. No other understanding, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind either of the parties hereto. SECTION 20: Modification. CITY and CLEARWIRE reserve the right to change or modify the terms and conditions of this Agreement However, no change or modification to this Agreement shall be valid or binding upon either party unless such change or modification is in writing and executed by both CITY, after receiving formal authorization by the CITY Council, and CLEARWIRE with each party employing the same formalities as to the identity of signatories as have been utilized in this Agreement. SECTION 21 Binding Effect. That this Agreement shall be binding upon and inure to the benefit of the legal representatives and proper assigns and proper successors of the parties. SECTION 22: Waiver of CITY'S Lien. CITY hereby waives any and all lien rights it may have, statutory or otherwise concerning the WCF or any portion thereof which shall be deemed personal property for the purposes of this Permit, whether or not the same is deemed real or personal property under applicable laws, and CITY gives CLEARWIRE and CLEARWIRE'S Mortgagees the right to remove all or any portion of the same from time to time, so long as CLEARWIRE is not in default under this Permit, in CLEARWIRE'S and/or Mortgagee's sole discretion and without CITY'S consent. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. in duplicate, the day and year first above written. CLEARW!RE -RESIDENCE STREET VVATER TOWER Page 8 of 9 ---PAGE BREAK--- LESSOR: CITY OF MOSCOW, IDAHO, a municipal corporation of the State oŢmr, LESSEE: CLEARWIRE, L.L.C. ACKNOWLEDGEMENT " STATE OF It'! , >J!J \ l ) ss. County of v'-4· ) OQ this day personally appeared before me, a Notary Public in and for said State, .J SJs: SEGI)*UNG at: a poJ.::t: N. CQ..,.J:J• ۍ·L l03A f:eet:. of c.l!G- Nort:bde.Et ccrr::;:l:" of Lot 51 Block 2, Hi.ghland VLیw Addition cc the Ci:.y of Nos-coz. che corne::: of Lot. 5, s:ock 2 ct said addition (being r.he carne::- of cicy rese::::-voir- let:),· thtutce S. 30°061 r-7. 9G feet1 more or less, to t::l:e South line of said Loc 2, Block li chence Easterly on tۊe Sou:ۑ line cf said Let 2 ۉo a woin.t 20 feet n. J0ۚ39' from tbe Ncr)heast cc-.r:'ler of S, '510-ck 2 of said add.i::ion; c.hence 27. N.1 t:o the Norch line! of said :a:ock l; t.'r۞ence s. 86"27' ::.1s fee-:, rr,c:::e less, to a N. 00°39' from ttߨe p2.ace cf begirJ"'Iۣing; r..he:r:ce S. coۗ391 to the POINT 0? ࠄࠅG!NNING. All ::hat pa:::cel cf lar:d sict;.ated in Lets 1 anci 2 I Block 1, Highlarࠀd View Addicicn co the Cicy Moscow, as shown by the ;;-eccrded !?lat ::hereof{ being rr:o:::e par:.i#ularlr described as follows: 3E:G!t>:'!'!!NG at a poi!!t on the Sout:-: lir:e o= sa_id 2, :ae:. 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