BOARD OF REGENTS BRIEFING PAPER

Transcription

1 BOARD OF REGENTS BRIEFING PAPER 1. Agenda Item Title: Lease of property for placement of cell tower facilities 2. BACKGROUND & POLICY CONTEXT OF ISSUE: The College of Southern Nevada proposes to enter into a long-term property lease agreement with Clearwire US, LLC pursuant to which Clearwire would install and operate a cell tower and associated facilities at the Henderson campus behind the A building. The size of the leased property will be 12 ft. x 15 ft. (180 sq. ft.) The height of the cell tower will be 70 feet and will look like a thick flagpole on which a flag can be flown; an equipment cabinet will also be placed on the leased property. The lease will allow Clearwire access to their facilities consistent with the typical operations of the College. Clearwire agrees to pay the College $1,200 per month which escalates 3% annually. The lease term can continue for up to 30 years at the option of CSN and Clearwire. 3. SPECIFIC ACTIONS BEING RECOMMENDED OR REQUESTED: President Michael Richards requests Board of Regents approval of the property lease agreement. 4. IMPETUS (WHY NOW?): CSN was recently approached with this lease proposition. CSN believes the financial arrangements are beneficial and the lease does not interfere with CSN s use of its property. Lastly, the placement of the cell facilities will enhance cell phone coverage in the region. 5. BULLET POINTS TO SUPPORT REQUEST/RECOMMENDATION: 1. The financial arrangements are beneficial to CSN. 2. The property to be leased is small and the lease does not impact CSN s use of its property over the term of the lease. The location is relatively remote on the back side of the existing A building and will not interfere with CSN operations. The size of the property to be leased is small. 3. The placement of the cell tower does not interfere with CSN s master plan. 4. The appearance of the tower is that of a thick flagpole. 5. Cell phone reception in the region will be enhanced. 6. Installation and maintenance of the facilities on the leased property will not interfere with CSN operations. The cell signals will not interfere with frequencies used by the CSN Police Department or other communications mediums on the campus. 7. NSHE real estate counsel and campus counsel have worked together to provide a comprehensive agreement. 6. POTENTIAL ARGUMENTS AGAINST THE REQUEST/RECOMMENDATION: 1. The cell tower is not required by CSN. 7. ALTERNATIVE(S) TO WHAT IS BEING REQUESTED/RECOMMENDED: Deny approval to lease the property. 8. COMPLIANCE WITH BOARD POLICY: X Consistent With Current Board Policy: Title #4 Chapter #10 Section #1.9 Amends Current Board Policy: Title # Chapter # Section # Amends Current Procedures & Guidelines Manual: Chapter # Section # Other: Fiscal Impact: Yes No Explain: (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 1 of 25

2 (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 2 of 25

3 (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 3 of 25

4 GROUND SITE LEASE AGREEMENT (RAWLAND) THIS GROUND SITE LEASE AGREEMENT ( Agreement ) dated and is effective as of, 2009, is between Clear Wireless LLC, a Nevada limited liability company ( Clear Wireless or Tenant ), and the Board of Regents of the Nevada System of Higher Education on behalf of the College of Southern Nevada ( Owner or Landlord ). For good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Premises. Landlord owns a parcel of land ( Land or Property ) located in the City of Henderson, County of Clark, State of Nevada, commonly known as the Henderson campus at College Drive, Henderson, Nevada (APN: ). The Land is more particularly described in Exhibit A annexed hereto. Subject to the provisions of Paragraph 2 below ( Effective Date/Due Diligence Period ), Owner hereby leases to Clear Wireless and Clear Wireless leases from Owner approximately one hundred eighty (180) square feet of surface area ( Premises ) on the Land, as described generally in Exhibit B annexed hereto, and Owner grants to Clear Wireless the right to cross the Land in order to be able to gain access to the leased surface area. Tenant acknowledges that Tenant has full knowledge of all matters pertaining to the Premises, including, but not limited to, the physical condition of the same, and that Tenant is leasing the Premises "AS IS" and Landlord shall not be required to perform any work or furnish any materials in connection with the Premises. Landlord makes no warranty of any kind or nature, express, implied or otherwise, or any representations or covenants of any kind or nature in connection with the condition of the Premises or any part thereof, and Landlord shall not be liable for any latent or patent defects therein or be obligated in any way whatsoever to correct or repair any such latent or patent defects. 2. Effective Date/Due Diligence Period. This Agreement shall be effective on the date of full execution hereof ( Effective Date ). Beginning on the Effective Date and continuing until the Term Commencement Date as defined in Paragraph 4 below ( Due Diligence Period ), Clearwire shall only be permitted to enter the Property for the limited purpose of making appropriate engineering and boundary surveys, inspections, and other reasonably necessary investigations and signal, topographical, geotechnical, structural and environmental tests (collectively, Investigations and Tests ) that Clear Wireless may deem necessary or desirable to determine the physical condition, feasibility and suitability of the Premises. In the event that Clear Wireless determines, during the Due Diligence Period, that the Premises are not appropriate for Clear Wireless intended use, or if for any other reason, or no reason, Clear Wireless decides not to commence its tenancy of the Premises, then Clear Wireless shall have the right to terminate this Agreement without penalty upon written notice to Owner at any time during the Due Diligence Period and prior to the Term Commencement Date. Owner and Clear Wireless expressly acknowledge and agree that Clear Wireless access to the Property during this Due Diligence Period shall be solely for the limited purpose of performing the Investigations and Tests, and that Clear Wireless shall not be considered an owner or operator of any portion of the Property, and shall have no ownership or control of any portion of the Property (except as expressly provided in this Paragraph 2), prior to the Term Commencement Date. 3. Use. The Premises may be used by Tenant for any lawful activity in connection with the provisions of wireless communications services, including without limitation, the transmission and the reception of radio communication signals and the construction, maintenance and operation of related communications facilities. Landlord agrees, at no expense to Landlord, to cooperate with Tenant, in making application for and obtaining all licenses, permits and any and all other necessary approvals that may be required for Tenant s intended use of the Premises. Landlord shall have the right to enter the Premises at all reasonable times and upon reasonable notice to Tenant (sufficient notice to facilitate Tenant s representative to be present) to: (i) inspect the Premises; (ii) determine whether Tenant is complying with all of its obligations hereunder; and (iii) perform its duties under this Lease, except that notice of intent to enter is not required in the event of any emergency threatening injury to persons or property. 4. Term. The term of this Agreement shall commence upon the date Tenant begins construction of the Tenant Facilities (as defined in Paragraph 6 below) or eighteen (18) months following the Effective Date, whichever first occurs ( Term Commencement Date ) and shall terminate on the fifth anniversary of the Term Commencement Date ( Term ) unless otherwise terminated as provided herein. Tenant shall have the right to extend the Term for five (5) successive five (5) year periods ( Renewal Terms ) on the same terms and conditions as set forth herein. This (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 4 of 25

5 Agreement shall automatically be extended for each successive Renewal Term unless Tenant notifies Landlord of its intention not to renew at least thirty (30) days prior to commencement of the succeeding Renewal Term. 5. Rent. Within fifteen (15) business days following the Term Commencement Date and on the first day of each month thereafter, Tenant shall pay to Landlord as rent One Thousand Two Hundred and 00/100 Dollars ($ ) per month ( Rent ). Beginning with the 13 th month and on each annual anniversary thereof, the then prevailing Rent shall be increased by three percent (3%). Rent for any fractional month at the beginning or at the end of the Term or Renewal Term shall be prorated. Rent shall be payable to Landlord at CSN Financial Services, Cheyenne Campus, North Las Vegas, Nevada. 6. Improvements. 6.1 Tenant has the right to construct, maintain, install, repair, secure, replace, remove and operate on the Premises radio communications facilities, including but not limited to a tower or pole and foundation, utility lines, transmission lines, an air conditioned equipment shelter(s) and/or an air conditioned equipment room, electronic equipment, transmitting and receiving antennas, microwave dishes, antennas and equipment, a power generator and generator pad, and supporting equipment and structures therefore ( Tenant Facilities ), generally as depicted on drawings attached hereto as Ex. D. The height of the tower or pole shall not exceed 70 ft. In connection therewith, Tenant has the right to do all work necessary to prepare, add, maintain and alter the Premises for Tenant s communications operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers. All of Tenant s construction and installation work shall be performed at Tenant s sole cost and expense and in a good and workmanlike manner. Subject to Section 10.3, Title to the Tenant Facilities and any equipment placed on the Premises by Tenant shall be held by Tenant or its lenders or assigns and are not fixtures, and Tenant has the right and the obligation to remove the Tenant Facilities at its sole expense on or before the expiration or earlier termination of this Agreement, and Tenant shall repair any damage to the Premises or the Property caused by such removal. Upon the expiration or earlier termination of this Agreement, Tenant shall remove the Tenant Facilities from the Property. Tenant shall not be obligated to remove any foundation more than one (1) foot below grade level. 6.2 Tenant shall submit the Plans and Specifications to Landlord s Facilities Department for review and approval to ensure consistency with this Agreement. Tenant shall not authorize any variance from the Plans and Specifications approved by Landlord without the prior written approval of Landlord, which shall not be unreasonably withheld as long as the variance is consistent with the terms of this Agreement. Tenant shall, at its sole expense, during construction and thereafter throughout the term of this Agreement, comply with, and require all of its employees, agents, contractors and subcontractors to comply with, all federal, state, and local laws and regulations pertaining to building, construction, employment, and operations of the Tenant Facilities. Tenant shall obtain and maintain at its sole expense all permits of whatever kind required for work performed or on-going operations on the Premises. Throughout the initial construction, Tenant shall allow periodic inspections of the Premises by governmental authorities and authorized representatives of Landlord to verify compliance with approved Plans and Specifications. 7. Access and Utilities. 7.1 Landlord shall not inhibit Tenant, Tenant s employees, agents, contractors, subcontractors and assigns from accessing the Premises at any time, except in the case of an emergency when Landlord in its discretion must limit access out of concerns for human safety or property integrity. Landlord grants to Tenant, and Tenant s agents, employees and contractors, a non-exclusive right for pedestrian and vehicular ingress and egress across the Property in order to access the Premises. 7.2 Landlord will maintain the Property generally as a college campus and will maintain its roadways, sidewalks and access paths as it sees fit, and shall ensure there is reasonable access to the Premises during the Term. Tenant shall be responsible to compensate Owner for any damage caused by Tenant s access across the Property. 7.3 Electric service to the Premises will be made by an extension from Landlord s current facilities as determined by the Landlord. The cost of the extension of the electric service to the Premises will be considered a cost of construction of the improvements for the Premises and will be paid by the Tenant. Landlord shall sub-meter any electricity usage on the Premises, and shall invoice Tenant monthly with no mark-up for the electric usage on the Premises. Landlord s invoice shall include a copy of the charges from the servicing utility company. (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 5 of 25

6 8. Interference. Tenant shall operate the Tenant Facilities in compliance with all Federal Communications Commission ( FCC ) requirements including those prohibiting interference to communications facilities of Landlord or other lessees or licensees of the Property, provided that the installation and operation of any such facilities predate the installation of the Tenant Facilities. Subsequent to the installation of the Tenant Facilities, Landlord will not, and will not permit its lessees or licensees to, install new equipment on or make any alterations to the Property or property contiguous thereto owned or controlled by Landlord, if such modifications are likely to cause interference with Tenant s operations. In the event interference occurs, Landlord agrees to use best efforts to eliminate such interference in a reasonable time period. Landlord s failure to comply with this paragraph shall be a material breach of this Agreement. Other than the foregoing, nothing in this Agreement is intended to in any way limit Landlord s use of the Property whether immediately adjacent to the Premises or otherwise. 9. Taxes. Tenant shall pay personal property taxes assessed against the Tenant Facilities and Landlord shall pay when due, all real property taxes and all other taxes, fees and assessments attributable to the Premises or this Agreement. 10. Termination This Agreement may be terminated on thirty (30) days prior written notice as follows: (i) by either party upon a default of any covenant or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of default, except that this Agreement shall not be terminated if the default cannot reasonably be cured within such sixty (60) day period and the defaulting party has commenced to cure the default within such sixty (60) day period and diligently pursues the cure to completion; provided that the grace period for any monetary default is ten (10) days from receipt of written notice. Notwithstanding the forgoing, no written notice is required to be provided to the tenant regarding the nonpayment of the monthly payment of rent This Agreement may be terminated by Tenant without further liability for any reason or for no reason, provided Tenant delivers written notice of termination to Landlord prior to the Commencement Date. This Agreement may also be terminated by Tenant on thirty (30) days prior written notice (i) if Tenant is unable to reasonably obtain or maintain any certificate, license, permit, authority or approval from any governmental authority, thus, restricting Tenant from installing, removing, replacing, maintaining or operating the Tenant Facilities or using the Premises in the manner intended by Tenant; (ii) if Tenant determines that the Premises are not appropriate for its operations for economic, environmental or technological reasons, including without limitation, signal strength, coverage or interference, or (iii) or Tenant otherwise determines, within its sole discretion, that it will be unable to use the Premises for Tenant s intended purpose. by the Tenant: 10.3 Tenant s Default. The occurrence of any of the following shall constitute an Event of Default (a) the failure by Tenant to pay Rent in full when it is due under this Agreement where such failure continues for a period of ten (10) days after receipt of written notice; (b) the failure by Tenant to pay any amount, other than Rent, in full when it is due under this Agreement where the failure continues for a period of ten (10) days after the date such payment was due; (c) Tenant denies access to the Landlord to the Premises when Landlord is acting within the terms of this Agreement; (d) Tenant fails to use the Premises for the limited purposes set forth herein; (e) Tenant abandons or vacates the Premises prior to the Termination Date; (f) Tenant fails to perform or observe any of its material obligations under this Agreement. Upon the occurrence of an Event of Default by Tenant, the Landlord shall have, in addition to any other remedies available to the Landlord at law or in equity (all of which remedies shall be distinct, separate and cumulative), with notice to Tenant, the option to do one or more of the following, in any order, successively or concurrently, except that in every case, Landlord shall, in good faith, take all reasonable efforts to mitigate damages: (1) Landlord may take any action deemed necessary by Landlord, in its sole and absolute discretion, to cure the default. Tenant shall be liable to Landlord for all of Landlord s reasonable expenses so incurred. (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 6 of 25

7 (2) Terminate this Agreement, and Tenant s right to possession of the Premises, by giving to Tenant a notice of intention to terminate this Agreement pursuant to 10.1 above. Upon the termination date pursuant to 10.1 above, the term of this Agreement and all right, title, and interest of the Tenant hereunder shall expire whereupon Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which it may have for possession or arrearages in rent, enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying the Premises, or any portion thereof, without being liable for prosecution or any claim of damages therefor; and Tenant agrees to pay to Landlord on demand the amount of all loss and damage which Landlord may suffer by reason of such termination, whether through inability to relet the Premises on satisfactory terms or otherwise; (3) Enter upon and take possession of the Premises without terminating this Agreement and expel or remove Tenant and any other person who may be occupying the Premises, or any portion, thereof without being liable for prosecution of any claim of damages therefor, and without terminating this Agreement or releasing Tenant from its obligations hereunder for the full term hereof, endeavor to relet the Premises for the account of Tenant for such time and upon such terms as Landlord shall determine, and receive the rent therefor. In any case of reletting hereunder, Landlord may make repairs, alterations and additions in or to the Premises to the extent deemed by Landlord necessary or desirable, and Tenant shall, upon demand, pay the cost thereof, together with Landlord s expenses of the reletting (including, without limitation, attorneys fees). 11. Destruction or Condemnation. If the Premises or Tenant Facilities are damaged, destroyed, condemned or transferred in lieu of condemnation, Tenant may elect to terminate this Agreement as of the date of the damage, destruction, condemnation or transfer in lieu of condemnation by giving notice to Landlord no more than fortyfive (45) days following the date of such damage, destruction, condemnation or transfer in lieu of condemnation. If Tenant chooses not to terminate this Agreement, Rent shall be reduced or abated in proportion to the actual reduction or abatement of use of the Premises. INSURANCE 12. Insurance; Subrogation; and Indemnity. Insurance During Initial Construction. Tenant shall secure, pay for and maintain, or cause its contactor(s) to secure, pay for and maintain in full force and effect, during construction and fixturing work within the Premises, the following insurance policies in the amounts set forth: (1) Comprehensive General Liability (including Contractor s Protective Liability) insurance (including explosion, collapse and underground coverage) in an amount not less than $2,000,000 for any one occurrence whether involving personal injury liability (or death resulting therefrom) or property damage liability or a combination thereof with an aggregate limit of $2,000,000; (2) All Physical Loss Builder s Risk insurance policy with Tenant, its contractor and subcontractors, and UNIVERSITY as named insured as their interests may appear, in an amount not less than one hundred percent (100%) of the replacement value of the Hotel as completed; (3) Workmen s Compensation insurance, as required by state law, and including employer s liability insurance with a limit of not less than $2,000,000, and any insurance required by any Employee Benefits Acts or other statutes applicable where the work is to be performed as will protect the contractor and subcontractor(s) from any and all liability under the aforementioned acts; (4) Owner s Protective Liability insurance insuring Tenant against any and all liability to third parties for damages because of personal injury liability (or death resulting therefrom) and property damage liability of others or a combination thereof which may arise from work in connection with the Premises, and any other liability for damages which contractor and/or subcontractors are required to insure against under any provision herein, in the following minimum amounts: (a) $2,000,000 per occurrence for personal injury and/or death; and (b) $2,000,000 for property damage liability; and Policy Requirements. All such insurance policies required under this Section, except as noted above, shall include UNIVERSITY as an additional insured, except Worker s Compensation Insurance, which shall contain an endorsement waiving all rights of subrogation against UNIVERSITY. Tenant shall not permit its contractor or subcontractors to commence any work until all required insurance has been obtained and certificates of such insurance have been delivered to UNIVERSITY. Certificates of insurance shall provide that no reduction in the amounts or limits (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 7 of 25

8 of liability or cancellation of such insurance coverage shall be undertaken without prior thirty (30) day written notice to UNIVERSITY. Insurance After Initial Construction. After the Initial Construction, Tenant, prior to occupation, shall during the Term, at Tenant s sole expense, secure, pay for and maintain in full force and effect the following insurance coverages: (1) A policy of comprehensive public liability and property damage insurance providing coverage against liability for injury or death to persons and for property damage occurring in or about the Premises. Such liability insurance shall be a broad form comprehensive, general liability policy, including but not limited to contractual liability, in an amount of not less than [$1,000,000.00] per occurrence and $2,000,000 in the aggregate. Landlord agrees that Tenant may satisfy insurance coverage limits over $1,000, by means of an excess liability policy. (2) A policy providing fire and extended coverage, vandalism, malicious mischief, sprinkler leakage and special extended coverage insurance in an amount adequate to cover the full cost of replacement of all Personal Property. Such insurance shall be in an amount equal to the un-depreciated replacement value of the property required to be insured. (3) Workmen s compensation insurance for all employees and staff of the Tenant working at the Premises, insuring against claims under the workmen s compensation laws of the State of Nevada with limits in the amount required by those laws. Policy Requirements. All insurance policies shall name Landlord as an additional insured, and shall be written by one or more responsible insurance companies licensed to do business in Nevada with a general policyholder rating of A- or better and a financial rating of VIII or better as rated in the most recent edition of Best's Insurance Guide (or similar rating service if such guide is no longer published). Such policies shall also include an endorsement requiring the company writing such policy to give Landlord at least thirty (30) days' notice in writing in advance of any cancellation or lapse of such policy or the effective date of any reduction in the amount of coverage under such policy. All public liability, property damage, and other casualty insurance policies obtained by Tenant pursuant to this Section shall be written as primary insurance and not contributing with separate coverage or self insurance which Landlord may carry. The insurance required by this Section may be covered by general policies covering all of Tenant'S operations. Upon Landlord s request, Tenant shall furnish Landlord with duly executed certificates of insurance evidencing that insurance policies meeting the requirements of this Section have been obtained, together with satisfactory evidence of the payments of premiums thereon. If Tenant fails to comply with any insurance requirements, Landlord may obtain insurance and keep it in effect, and upon demand Tenant shall pay Landlord the cost of procuring such insurance. The insurance policies required by this Lease shall be reviewed at least every five years and the amount of coverage therein shall be adjusted for inflation or for any other cause that warrants a change in coverage limits. Landlord shall have the right to require Tenant to raise the limits of the insurance coverage Tenant is required to carry under the terms of this Agreement at the end of the tenth (10 th ) and twentieth (20 th ) year of this Agreement to account for the impacts of inflation over time, INDEMNITY In addition to any other indemnity provided by Tenant pursuant to this Lease, Tenant shall indemnify, defend and hold harmless Landlord from and against any and all claims, suits, actions, proceedings, liability, damages, costs or expenses, including reasonable attorneys and experts fees and court costs, for injury to any person, loss of life or damage to property occurring either on the Property or on the Premises, or for damage to the Property, arising directly or indirectly from any act or failure to act by Tenant, its employees, agents, contractors, or representatives, which may occur during or which may arise out of the performance of this Agreement. This Section shall survive the expiration or termination of this Lease. WAIVER OF SUBROGATION Landlord and Tenant hereby waive any claims that may arise against the other during the Term for any loss of, or damage to, any of the Personal Property and/or Improvements located within or upon, or constituting a part of, the Premises, which loss or damage is covered by valid or collectible fire or extended coverage insurance policies, to the (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 8 of 25

9 extent that such loss or damage is recoverable under such insurance policies. The mutual waivers shall be in addition to, and in limitation or derogation of, any other waiver or release contained in this Lease with respect to any loss of or damage to, property of Tenant and Landlord. Inasmuch as the mutual waivers will preclude the assignment of any claim by way of subrogation or otherwise to an insurance company (or any other person), Landlord and Tenant hereby agree to immediately give to each insurance company which has issued any policy of fire and extended coverage insurance written notice of the terms of the mutual waivers, or to cause the insurance policies to be properly endorsed, if necessary, to prevent the invalidation of the insurance coverage as a result of such waivers. This waiver is also incorporated by reference into any assignment of this Lease. 13. Assignment. Tenant shall not assign any interest in this Agreement without the prior written consent of Landlord which consent shall not be unreasonably withheld, conditioned or delayed provided however that Tenant may, without Landlord s consent, assign this Lease to a corporation which is a partner, parent, subsidiary or affiliate of Tenant. For the purposes of this Section, a parent shall mean a corporation which owns not less than fifty-one percent (51%) of the outstanding stock of Tenant, a subsidiary shall mean any corporation not less than fifty-one percent (51%) of whose outstanding stock shall be owned by Tenant, and an affiliate shall mean any partner or corporation not less than fifty-one percent (51%) of whose outstanding stock shall be owned by the Tenant s parent. Upon such assignment to a partner, parent, subsidiary or affiliate of Tenant, such assignee shall succeed to all rights and options of the Tenant hereunder. It is hereby expressly understood and agreed that the assignment of this Lease and the term and estate hereby granted, to (a) any corporation into which Tenant is merged or to which Tenant has sold all or substantially all of its assets, or (b) any entity which is an Affiliate or (c) any entity which is a transferee or assignee of Tenant s FCC wireless license as part of the sale or exchange of all or a majority of Tenant s sites in the market in which the Premises is located (any such corporation, entity or transferee in (a), (b) and (c) being hereinafter called Assignee ), shall not require Owner s consent; provided (x) that Assignee and Tenant shall promptly execute, acknowledge and deliver to Owner an assignment agreement in form satisfactory to Owner, and (z) that the Assignee is an FCC licensed telecommunications company and otherwise properly licensed to operate the wireless communications system. Tenant, may also, upon notice to Landlord, mortgage or grant a security interest in Tenant s equipment, and may assign this Lease and the equipment to any mortgagees or holders of security interest, including their successors or assigns collectively ( Mortgagees ), provided such Mortgagees agree to be bound by the terms and provisions of this Lease. If reasonably required by the Mortgagees, Landlord shall execute such consent to Leasehold or equipment financing. The foregoing notwithstanding, under no circumstances shall any assignee or Mortgagee of Tenant have any property rights in the Building beyond that of a leasehold interest for the term of the Lease. 14. Title and Quiet Enjoyment Landlord represents and warrants that (i) it has full right, power, and authority to execute this Agreement, (ii) Tenant may peacefully and quietly enjoy the Premises and such access thereto, provided that Tenant is not in default hereunder after notice and expiration of all cure periods, (iii) it has obtained all necessary approvals and consents, and has taken all necessary action to enable Landlord to enter into this Agreement and allow Tenant to install and operate the Facility on the Premises, including without limitation, approvals and consents as may be necessary from other tenants, licensees and occupants of Landlord s Property, and (iv) the Property and access rights are free and clear of all liens, encumbrances and restrictions except those of record as of the Effective Date Tenant has the right to obtain a title report or commitment for a leasehold title policy from a title insurance company of its choice. If, in the opinion of Tenant, such title report shows any defects of title or any liens or encumbrances which may adversely affect Tenant s use of the Premises, Tenant shall have the right to terminate this Agreement immediately upon written notice to Landlord. Tenant s leasehold title policy shall be Tenant s sole recourse and/or remedy in the event of any defect of title or any liens or encumbrances which may adversely affect Tenant s use of the Premises, and Tenant hereby disclaims and waives any liability on the part of the Landlord for any such defects, liens or encumbrances. 15. Environmental. As of the Effective Date of this Agreement: (1) Tenant hereby represents and warrants that it shall not use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon or affecting the Premises and the Property in violation of any applicable law or regulation, and (2) Landlord hereby represents and warrants that (i) it has no knowledge of the presence of any Hazardous Material located in, on, under, upon or affecting the Property in violation of any applicable law or regulation; (ii) no notice has been received by or on behalf of Landlord from any governmental entity or any person or entity claiming any violation of any applicable environmental law or regulation in, on, under, upon or affecting the Property; and (iii) it will not permit itself or any (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 9 of 25

10 third party to use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon, or affecting the Premises in violation of any applicable law or regulation. Tenant shall indemnify, defend and hold the Landlord harmless from and against all Losses (specifically including, without limitation, attorneys, engineers, consultants and experts fees, costs and expenses) arising from (i) any breach of any representation or warranty made in this Paragraph 15 by it; and/or (ii) environmental conditions or noncompliance with any applicable law or regulation that result from operations in or about the Premises by Tenant or Tenant s agents, employees or contractors. The provisions of this Paragraph 15 shall apply as of the Effective Date of this Agreement and survive termination of this Agreement. Hazardous Material means any solid, gaseous or liquid wastes (including hazardous wastes), regulated substances, pollutants or contaminants or terms of similar import, as such terms are defined in any applicable environmental law or regulation, and shall include, without limitation, any petroleum or petroleum products or by-products, flammable explosives, radioactive materials, asbestos in any form, polychlorinated biphenyls and any other substance or material which constitutes a threat to health, safety, property or the environment or which has been or is in the future determined by any governmental entity to be prohibited, limited or regulated by any applicable environmental law or regulation. 16. Waiver of Landlord s Lien. Landlord hereby waives any and all lien rights it may have, statutory or otherwise concerning the Tenant Facilities or any portion thereof which shall be deemed personal property for the purposes of this Agreement, whether or not the same is deemed real or personal property under applicable laws, and Landlord gives Tenant and Mortgagees the right to remove all or any portion of the same from time to time, whether before or after a default under this Agreement, in Tenant s and/or Mortgagee s sole discretion and without Landlord s consent. 17. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by for nextbusiness-day delivery by a nationally recognized overnight carrier to the following addresses: If to Tenant, to: With a copy to: If to Landlord, to: Clear Wireless LLC Attn: Site Leasing 4400 Carillon Point Kirkland, WA Telephone: Fax: Siteleasing@clearwire.com Clear Wireless LLC Attention: Legal Department 4400 Carillon Point Kirkland, WA Telephone: Fax: Board of Regents University of Nevada System 3200 Cheyenne Avenue North Las Vegas, NV Landlord or Tenant may from time to time designate any other address for this purpose by written notice to the other party. All notices hereunder shall be deemed received upon actual receipt or refusal to accept delivery. 18. Miscellaneous If Tenant is to pay Rent to a payee other than the Landlord, Landlord shall notify Tenant in advance in writing of the payee s name and address If any provision of the Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law Terms and conditions of this Agreement which by their sense and context survive the termination, cancellation or expiration of this Agreement will so survive This Agreement shall be governed under the law of the State of Nevada, and be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. Any and all disputes arising out of or in connection with this Lease shall be litigated and determined in a court of competent jurisdiction in Clark County, State of Nevada. (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 10 of 25

11 18.5 A Memorandum of Agreement in the form attached hereto as Exhibit C may be recorded by Tenant confirming the (i) effectiveness of this agreement, (ii) expiration date of the Term, (iii) the duration of any Renewal Terms, and/or other reasonable terms consistent with this Agreement. Landlord may, at any time, assign or transfer its interest in and to this Agreement, or any part thereof, and may, at any time sell, transfer or encumber its interest in the fee of the Premises, in whole or in part, without Tenant s approval. In the event Landlord sells the Premises and/or assigns its interest in this Lease and Landlord s successor in interest assumes all of Landlord s obligations under this Lease, Landlord shall be released from all obligations under this Agreement, not accrued as of the date of such sale or transfer; and the purchaser, at such sale or transfer or any subsequent sale or transfer of the Premises, shall be deemed, without any further agreement between the parties or their successors in interest or between the parties and any such purchaser, to have assumed and agreed to carry out any and all of the covenants and obligations of the Landlord under this Agreement. Tenant shall attorn to any assignee, transferee or purchaser of Landlord s interest in this Agreement who assumes all of Landlord s obligations under this Agreement in accordance with the provisions of this Section from and after the date of written notice to Tenant of such assignment, transfer or sale and assumption in the same manner and with the same force and effect as though this Agreement were made in the first instance by and between Tenant and such assignee, transferee or purchaser All Exhibits referred herein are incorporated herein for all purposes This Agreement constitutes the entire Agreement between the parties, and supersedes all understandings, offers, negotiations and other leases concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments, modifications or waivers of any of the terms and conditions of this Agreement must be in writing and executed by both parties Landlord agrees not to disclose, without the written consent of Tenant, any of the terms of this Agreement or any other written agreement between the parties relating to the privileges granted herein, except as required by Nevada law or governmental authority, in which case Landlord shall inform Tenant prior to divulging such information The provisions of this Agreement are not intended to create, nor shall they be in any way interpreted or construed to create, a joint venture, partnership or any other similar relationship between Landlord and Tenant Tenant shall at all times keep the Premises, Tenant s leasehold interest under this Agreement, and the rents, or any portion thereof, free and clear of all liens and claims of whatever, and free and clear of all attachments, executions, or levies, and Tenant shall not suffer any other matter or thing whereby the estate, rights, and/or interests of Landlord in the Premises, or any portion thereof, might be impaired. In the event of the filing or levy of any such lien, claim, attachment, or execution, Tenant shall, within sixty (60) days after notice of the filing thereof, cause the same to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction, or as otherwise approved by Landlord Landlord may, at any time, assign or transfer its interest in and to this Agreement, or any part thereof, and may, at any time sell, transfer or encumber its interest in the fee of the Premises, in whole or in part, without Tenant s approval. In the event Landlord sells the Premises and/or assigns its interest in this Lease and Landlord s successor in interest assumes all of Landlord s obligations under this Lease, Landlord shall be released from all obligations under this Agreement, not accrued as of the date of such sale or transfer; and the purchaser, at such sale or transfer or any subsequent sale or transfer of the Premises, shall be deemed, without any further agreement between the parties or their successors in interest or between the parties and any such purchaser, to have assumed and agreed to carry out any and all of the covenants and obligations of the Landlord under this Agreement. Tenant shall attorn to any assignee, transferee or purchaser of Landlord s interest in this Agreement who assumes all of Landlord s obligations under this Agreement in accordance with the provisions of this Section from and after the date of written notice to Tenant of such assignment, transfer or sale and assumption in the same manner and with the same force and effect as (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 11 of 25

12 though this Agreement were made in the first instance by and between Tenant and such assignee, transferee or purchaser Surrender of Premises. Upon expiration or earlier termination of this Agreement, Tenant shall promptly quit and surrender the Premises in good condition. If the Premises are not surrendered at the end of the Term, Tenant shall indemnify Landlord against loss or liability resulting from delay by Tenant in so surrendering the Premises. Holding Over. If Tenant remains in possession of the Premises after the expiration or earlier termination of this Agreement with the consent of the Landlord and without executing a new lease, and if rent is paid by Tenant and accepted by the Landlord, then Tenant s continued possession shall create a month-to-month tenancy, subject to all the terms, conditions and obligations set forth in this Lease, insofar as the same are applicable to a monthto-month tenancy, except that monthly rent shall increase to 120% of the rent that was charged for the last month immediately preceding expiration or earlier termination of this Agreement. Tenant shall continue in possession until such tenancy is terminated by either Tenant or the Landlord giving written notice of termination to the other party at least thirty (30) days prior to the effective date of termination. If Tenant remains in possession of the Premises after the expiration or earlier termination of this Agreement without the consent of the Landlord, then Tenant shall be a tenant-at-sufferance and Landlord shall be entitled to terminate the tenancy immediately without written notice. If Tenant shall fail to vacate the Premises at the expiration of such tenancy, Tenant agrees that it shall be liable to the Landlord for all actual and consequential damages resulting from Tenant s failure to so vacate. These damages may include, without limitation, the cost of unlawful detainer proceedings instituted by the Landlord against Tenant, including court costs and attorneys' fees and costs. This Section shall survive the expiration or earlier termination of this Lease. 19. At CSN s option, Clear Wireless shall obtain prior to the execution of the agreement and maintain, or place with CSN as circumstances require, during the term of the agreement, either: 1) A surety bond or performance bond from a surety acceptable to CSN to ensure third party protection to CSN for the payment of rent due to CSN and the cost of removing all of the equipment on the premises; or 2) A security deposit held by CSN in an amount acceptable to CSN against which any monetary obligation of any kind may be applied if the required payment is not timely made. IN WITNESS WHEREOF, the parties have entered into this Agreement effective as of the date first above written. LANDLORD: Board of Regents of the Nevada System of Higher Education on behalf of the College of Southern Nevada By: Name: Title: Date: Tenant: Clear Wireless LLC, a Nevada limited liability company By: Name: Title: Date: Tax I.D.: (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 12 of 25

13 RECOMMENDED BY: APPROVED AS TO FORM: Michael D. Richards, President Richard Hinckley, General Counsel Date: (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 13 of 25

14 [Notary block for a Corporation] STATE OF ) ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it as the of, a, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Public Print Name My commission expires (Use this space for notary stamp/seal) [Notary block for Tenant] STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the of Clear Wireless LLC, a Nevada limited liability company, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Public Print Name My commission expires (Use this space for notary stamp/seal) (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 14 of 25

15 EXHIBIT A DESCRIPTION OF LAND to the Agreement dated, 2009 by and between Board of Regents of the Nevada System of Higher Education on behalf of the College of Southern Nevada as Landlord, and Clear Wireless LLC, a Nevada limited liability company, as Tenant. The Land is described and/or depicted as follows (metes and bounds description): APN: A WRITTEN DESCRIPTION OF THE LAND WILL BE PRESENTED HERE OR ATTACHED HERETO (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 15 of 25

16 EXHIBIT B DESCRIPTION OF PREMISES to the Agreement dated, 2009, by and between Board of Regents of the Nevada System of Higher Education on behalf of the College of Southern Nevada as Landlord, and Clear Wireless LLC, a Nevada limited liability company, as Tenant. The Premises are described and/or depicted as follows: A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED HERETO Notes: 1. Tenant may replace this Exhibit with a survey of the Premises once Tenant receives it. 2. The Premises shall be setback from the Property s boundaries as required by the applicable governmental authorities. 3. The access road s width will be the width required by the applicable governmental authorities, including police and fire departments. 4. The type, number, mounting positions and locations of antennas and transmission lines are illustrative only. The actual types, numbers, mounting positions and locations may vary from what is shown above. 5. The locations of any utility easements are illustrative only. The actual locations will be determined by the servicing utility company in compliance with all local laws and regulations. (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 16 of 25

17 EXHIBIT C COMMUNICATIONS FACILITY to the Agreement dated, 2009 by and between Board of Regents of the Nevada System of Higher Education on behalf of the College of Southern Nevada as Landlord, and Clear Wireless LLC, a Nevada limited liability company, as Tenant. RECORDED AT REQUEST OF, AND WHEN RECORDED RETURN TO: Clear Wireless LLC 4400 Carillon Point Kirkland, WA Attn: Site Leasing MEMORANDUM OF AGREEMENT APN: This MEMORANDUM OF AGREEMENT is entered into on, 2009, by Board of Regents of the Nevada System of Higher Education on behalf of the College of Southern Nevada ( Owner or Landlord ). with an address at 700 College Drive, Henderson, NV, (hereinafter referred to as Owner or Landlord ) and Clear Wireless LLC, a Nevada limited liability company, with an address at 4400 Carillon Point, Suite 300, Kirkland, WA (hereinafter referred to as Clear Wireless or Tenant ). 1. Owner and Clear Wireless entered into a Communication Tower Agreement ( Agreement ) dated as of, 2009, effective upon full execution of the parties ( Effective Date ) for the purpose of Clear Wireless undertaking certain Investigations and Tests and, upon finding the Property appropriate, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Agreement. 2. The term of Clear Wireless tenancy under the Agreement is for five (5) years commencing on the date Tenant begins construction of the Tenant Facilities or eighteen (18) months following the Effective Date, whichever first occurs ( Term Commencement Date ), and terminating on the fifth anniversary of the Term Commencement Date with five (5) successive five (5) year options to renew. 3. The Land that is the subject of the Agreement is described in Exhibit A annexed hereto. The portion of the Land being leased to Tenant and all necessary access and utility easements (the Premises ) are set forth in the Agreement. In witness whereof, the parties have executed this Memorandum of Agreement as of the day and year first written above. LANDLORD: Board of Regents of the Nevada System of Higher Education on behalf of the College of Southern Nevada Tenant: Clear Wireless, LLC a Nevada limited liability company By: EXHIBIT ONLY DO NOT EXECUTE By: EXHIBIT ONLY DO NOT EXECUTE Name: Title: Date: Name: Title: Date: (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 17 of 25

18 [Notary block for a Corporation] STATE OF ) ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it as the of, a, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Public Print Name My commission expires (Use this space for notary stamp/seal) [Notary block for Tenant] STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the of Clear Wireless LLC, a Nevada limited liability company, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Public Print Name My commission expires (Use this space for notary stamp/seal) (INVESTMENT COMMITTEE 06/12/09) Ref. INV-12, Page 18 of 25

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