springbrook lease 2008

8/6/2019 Springbrook Lease 2008

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LEASE AGREEMENT

FOR

TELECOMMUNICATIONS

WITH

T-MOBILE NORTHEAST LLCat

Springbrook High School201 Valleybrook Drive

Silver Spring, Maryland 20904


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LEASE AGREEMENT FOR TELECOMMUNICATIONS

INDEX

1ON EXCLUSIVITY: CO LOCA TION2EASED PREMISES

TERM4ENTAL5ECURITY DEPOSIT. SURETY BO ND6. RENEWAL7. CANCELLATION

8. EASEMENTS SERVING PREMISES9. PURPOSE10. USE OF PREMISES11. COMPLIANCE WITH GOVERNMENTAL LAWS12. O W N E R S H I P, S U B O R D IN A T I O N A N D N O N D IS T U R B A N C E13. RESTORAT ION OF THE PREMISES14. TELECOMMUNICATIONS POLICY1 : s .EFAULT16. LICENSES AND PERMITS17 . C O N S T R U C T IO N B Y T E N AN T18. INTERFERENCE19 . INDEMNIFICATION20 . IN S U R AN C E R E Q U IR E M E N T S21 ._ 7.A_R_D S AT E RIALSA S I G I O E \ T


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7 3. INSPECTIONS24. QUIET ENJOYMENT25. DAMAGE AND DESTRUCTION7 6. CONDEMNATION27. BINDING EFFECT28. RECORDATION29. NOTICES30. WAIVER31. ENTIRE AGREEMENT32. GOVERNANCE33. CONFLICTS

EXHIBITSEXHIBIT A -EXHIBIT B -

EXHIBIT C-

EXHIBIT D-

Site Drawing showing Property and PremisesMap showing Non-Exclusive Right of Way and Easements(Not Provided)Hazardous Materials Activities Tenant(None)School Hours

EXHIBIT E-

EXHIBIT F-EXHIBIT G-EXHIBIT H-

Recommendation of Telecommunications Transmission FacilityCoordinating GroupRight of Entry AgreementCurrent Board Policy ECNMemorandum of Aueement


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School Site: Springbrook High SchoolLEASE AGREEMENT FOR TELECOMMUNICATIONS

THIS LEASE made this cv ay of \ji.,( , 200' , by and between theBoard of Education of Montgomery County, governing body of MONTGOMERY COUNTYPUBLIC SCHOOLS (hereinafter the "Landlord"), and T-Mobile Northeast LLC, a Delawarelimited liability company, (hereinafter the "Tenant").

Landlord hereby rents to Tenant and Tenant hereby rents from Landlord the leasedpremises herein described upon the following terns and conditions:

.ON-EXCLUSIVITY; CO-LOCATION. Landlord leases to Tenant a portion of theParcel (hereinafter described), a portion of which (namely the fenced enclosure assignedto Tenant) is leased on an exclusive basis, for the express purpose of Tenant's placingcertain approved telecommunications facilities (the "Communications Facility") on thePremises (as defined below) to promote the public purposes of the TelecommunicationsAct of 1996. Tenant agrees and understands that it shall enjoy a non-exclusive right touse that portion of the Parcel on which is constructed a tower, monopole, or otherantenna-related structure and shall permit co-location by other tenants on any tower,monopole, or other structure that it may construct for its telecommunication purposes.Tenant shall deal in good faith with any other tenants who may be granted co-locationrights on the Communications Facility.

2.EASED PREMISES. The leased premises ("Premises") consist of approximately 720square feet of that certain tract of land lying in Montgomery County, Maryland,containing approximately 25.13 acres and conveyed to the Landlord pursuant to a deeddated February 16, 1956 and recorded in the Land Records of Montgomery County,Maryland in Liber 2173, Folio 222 , which property is known as the Springbrook. HighSchool Site ("the Site"). The Parcel is further identified as Block A, Lots 1 1 - 26 on TaxMap JQ 53.The Prem ises are more particularly shown on a site drawing attached hereto asExhibit A and ma de a part hereof. As a co ndition to the Landlord's consent to this Lease,Tenant shall submit drawings dep icting the Premises and the required Easements inParagraph 8.TERM. The term of this Lease shall be five (5) years with a five-year renewal option atthe discretion of the Tenant, subject to the cancellation (Paragraph 7) and the defaultprovisions (Paragraph 15) of this Lease. Tenant may be granted permission to renew fortwo additional five-year terms. The initial term shall commence on the earlier to occur ofthe commencement of construction of the Communications Facility or the sixtieth (60 t h )day following the above date of this Lease, unless the parties agree in writing to adifferent commencement date ("Commencement Date").

4.ENTAL. Tenant hereby covenants and agrees to pay or cause to be paid as annual rentto Landlord the total sum of Twenty-Four Thousand Dollars (S24,000) for the initial12-month term by monthly payments of Two Thousand Dollars (S2,000.00).


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(a ) Annual rent shall be adjusted at each anniversary of the Lease year by two andone-half percent (2.5%) over the previous year's rent or an amount equal to theincrease in the Consumer Price Index (CPI-L)-- All Urban Consumers - U.S CityAverage, whichever is greater. The CPI computation to be used is the 12 MonthPercent Change, using the month preceding the anniversary month of renewal.An example is:Monthly rental is $2,000.00 with an anniversary month of October 2006. CPI-U12 Months Percent Change for September is 2.8%. Monthly increase would be$56.00, for a new monthly lease payment of $2,056.00.Additional information on the CPI can be found in the Bureau of LaborStatistics at http://www.b1s.gov/news.release/cpi.t06.htm

(b ) Rent set forth hereinabove shall be adjusted annually on each anniversary of theCommencement Date referenced in Section 3 (unless the Commencement Date isother than the first day of the month, in which event the Rent shall be adjustedannually commencing on the first day of the calendar month following the firstanniversary of the Commencement Date) during the term of the Lease. Rent forany period during the Term hereof which is for less than one month shall beprorated based upon the actual number of days of the calendar month involved.

(c ) Rent shall be made payable to the Montgomery County Public Schools anddelivered to the Office of the Chief Operating Officer, 850 Hungerford Drive,Rockville, Maryland 20850, or such other place as the Landlord may from time totime so designate in writing at least thirty (30) days in advance of a rentalpayment date.

5. SECURITY DEPOSIT/SURETY BOND. Upon execution of this Lease, Tenant shalldeposit with the Landlord, at the option of Tenant, a cash security deposit or a suretybond in a form and from a surety company acceptable to the Landlord in the amount ofFifty Thousand Dollars ($50,000.00) as security for the faithful performance andobservance of the terms and conditions of this Lease. It is agreed that if Tenant defaultswith respect to any terms and conditions of this Lease, including but not limited to thepayment of rent, or the removal of its equipment at the conclusion of this Lease, Landlordmay use, apply, retain or draw against the whole or any part of said security deposit orsurety bond required for the payment of any rent or any other sum as to which the Tenantis in default or for any sum which the Landlord may expend or may be required toexpend by reason of the Tenant's defaults of any of the terms, conditions, and covenantsof this Lease. If Tenant shall fully and faithfully comply with all the terms, covenants,and conditions of this Lease, the security deposit shall be returned to Tenant or the suretybond shall be extinguished no later than sixty (60) days after the end of this Leaseprovided Tenant has delivered the Premises in the manner required herein.

6. RENEWAL. At the option of the Tenant and so long as Tenant is not in default under anyof the terms hereof, this Lease may be renewed if, at least one hundred eighty (180) daysprior to expiration of the then current term of this Lease, Tenant provides written noticeof its intent to renew the Lease for another five-year term. At least ninety (90) days prior

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to the expiration of the then current term, Landlord shall inform Tenant in writing of theannual rent for the new term, which shall not exceed five percent (5%) over the previousyear's annual rental rate.

7. CANCELLATION. Landlord may cancel this Lease for cause if Tenant fails to complywith the terms and conditions of this Lease. Tenant shall have thirty (30) days afterwritten notice to cure any non-conforming condition to the reasonable satisfaction of theLandlord. If Landlord determines that Tenant's actions pose a risk in violation of anyfederal or state law, regulation or ordinance applicable to public health, safety or welfareand issues written notice, or if Tenant's actions result in the issuance of a legal Notice ofViolation of any public health, safety or welfare law, regulation or ordinance and Tenantis unable to cure the conditions specified in the Landlord's notice or the legal Notice ofViolation within the time prescribed therein, then Landlord may immediately terminatethis Lease, by written notice to Tenant.

8. EASEMENTS SERVING PREMISES.(a )he Board of Education must give formal approval to the easements serving the

Premises. Subject to its prior formal approval and after a utility location analysisby a duly qualified utility location service, the Landlord hereby grants to Tenantthe easements described below in this Paragraph 8 and Subparagraphs I through iv(such easements collectively called the "Appurtenant Easements") as easementsappurtenant to the leasehold granted to Tenant in this Lease. The AppurtenantEasements may not be assigned or otherwise transferred in whole or in partseparately from the leasehold granted under this Lease; and any such attemptedassignment or transfer shall be void.i. Landlord grants Tenant a nonexclusive, temporary construction easement

over, on, and through a portion of the school Site, as shown on Exhibit B,for construction and installation of the Communications Facility upon thePremises. Such tem porary construction easem ent shall terminate upon theearlier of (i) completion of Tenant's construction d escribed in P aragraph10 or (ii) the first anniversary of the commencement of this Lease.

ii. Tenant shall be permitted the non-exclusive use of a right-of-way ten feet(10') in width, the centerline of which is shown on Exhibit B hereof, orsuch other right-of-way of similar dimensions as Landlord may desi mateduring the term of this Lease, to construct, operate, maintain, repair andremove Tenant's underground communication cables from the Premises,across and through that portion of the Site described on Exhibit B as the"Proposed Underground Conduits for Radio Cables". Tenant shall postand maintain at least four (4) signs indicating "Underground Cables" onthe fence enclosing its equipment and on the Tower outlining theextremities of the path of the underground cables.

iii. At such time as is necessary, Landlord shall grant to the local utility andtelephone companies a non-exclusive easement and right-of-way of ten

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feet (10') in width for the purpose of constructing, installing, maintaining,operating, providing, repairing, and removing, undergroundcommunication and electric power lines arid systems, along anclior underthose portions of the Site designated and the right-of-way of Tenantprovided for during, the term of this Lease for purposes of installation andprovision of telephone and electric service to the Premises. Any utilityeasement required shall be submitted to the Board of Education for formalapproval. For utility services, Tenant shall use the same non-exclusive utilityeasements ganted by the Landlord to Verizon Telephone Company andPotomac Electric Power Company to serve the needs of Tenant.

iv .andlord hereby grants Tenant a non-exclusive right to use the existing -driveway for ingress to and egress from the Premises by Tenant forvehicular traffic for constructing, installing, maintaining, operating,repairing, and removing equipment over that portion of the Site desi gn atedon Exhibit B hereof, as "Proposed 20' Ingress-Euess Easement", or suchother right-of-way of similar width as may be designated by Landlord toprovide such access to the Premises and the Communications Facilityduring the term of this Lease.

(b )andlord shall have the right to relocate any of the Appurtenant Easements uponat least ninety (90) days' prior written notice. If such relocation occurs after theinstallation of utilities or facilities therein, such relocation shall be at Landlord'sexpense and shall be conducted in such a manner so as to minimize any disruptionto Tenant's operations under this Lease.With the exception of the temporary construction easement provided for, whichmay expire sooner as provided in such subparagraph, and any utility easements tothird party utility or power companies, which shall expire in accordance with theirterms, the teiin of all Appurtenant Easements shall automatically expire thirty(30) days after expiration or termination of this Lease without the need for furtheract of any party. Notwithstanding the foregoing, if requested by Landlord, Tenantshall execute and deliver to Landlord, in recordable form, such documents asLandlord may request to evidence of record the termination of all AppurtenantEasements as just provided.

9URPOSE. The Premises shall be used to locate towers, equipment, buildings andrelated facilities, including the Communications Facility, for telecommunications use.No grading, cutting of trees, removal of sod or topsoil and no installation of additionalpeiirianent or temporary structures, including fencing, shall be done without the priorwritten and express consent of Landlord. The Premises shall be used only for purposescompatible with the zoning of the Parcel. Tenant shall return the Premises to the originalcondition, normal wear and tear and damage by casualty not caused by Tenant excluded,prior to the expiration of the term of this Lease or any extensions or renewals thereof.Tenant agrees to control all noxious weeds in accordance with the guidelines of theMaryland Department of Agriculture. Tenant also agrees to periodically mow thePremises and to remove brush and debris as necessary.

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1 G .SE OF PREMISES.(a ) Tenant shall use the Premises for the purpose of installing, removing, replacing,modifying, m aintaining, and operating, at its expense. the CommunicationsFacility, which shall be deemed to include, without limitation, antennasequipment, electronic equipment, cable wiring, air conditioned equipmentshelter(s), backup power sources (including generators and fuel storage tanks inaccordance with Paragraph 21 and applicable laws), related fixtures, and anantenna structure. and shall use the Appurtenant Easements solely for theapplicable purposes described in Paragraph 9. Landlord makes no representationor warranty whether such use is permitted by any laws or regulations applicable tothe Premises, and Tenant is solely responsible for determining whether such use ispermitted, and for securing all necessary licenses, permits and approvals thereforfrom the appropriate governmental agencies.

(b) Notwithstanding any other provision of this Lease, the Tenant acknowledges theabsolute primacy of the Landlord's use of the Site to serve the needs of the publicschool system, and that Tenant's rights under this Lease are subject andsubordinate to Landlord's use and operation of the Site. Accordingly,. inexercising its rights under this Lease, Tenant shall use its best efforts to avoid anyadverse construction, operation or other impacts on the Site and Landlord's useand operation thereof, arising from Tenant's activities conducted on or off of theSite. Prior to any entry upon the Premises. Tenant shall provide reasonableadvance notice to Landlord of such entry and of any work or activities to beconducted on the Premises. Such entry, work and other activities shall occur onlyat such times and shall occur in such muffler, as may be required by Landlord toavoid any adverse impacts. Tenant may not access the Premises during schoolhours, which times are listed on the Schedule in Exhibit D, nor at any time whenschool property may be used by programs coordinated by the County Office ofCommunity -Use of Public Facilities, except with prior notice to and approval ofthe building administrator (See Exhibit D). In cases of bona fide emergenciesadversely impacting Tenant's provision of communication services or threateninglife and safety, Tenant may enter the Premises without prior notice to Landlord.provided Tenant notifies Landlord of same as soon as practicable.

(c ) Subject to the conditions set forth in Paragraph 10 (b), Exhibit D and the Right ofEntry Agreement annexed hereto as Exhibit F, Tenant shall have the right at anytime following the full execution of this Lease to enter upon the Parcel for thepurpose of making appropriate engineering and boundary surveys, inspections, soiltest borings and other reasonably necessary tests.

(d ) If at any time during the term of this Lease, Landlord reasonably determines, afterconsultation with Tenant, that the Communications Facility and related facilitieshave not been and/or can not be operated in a manner that does not materially andadversely impact the Landlord's use and operation of the Site to serve the needsof MCPS, then Landlord shall provide Tenant with detailed written information

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specifying the nature of the condition that Landlord has determined to haveresulted in such material and adverse impact upon the Landlord's use andoperation. If Tenant is unable to remedy such condition to the reasonablesatisfaction of Landlord, within thirty (30) days f011owing Landlord's provision ofthe foregoing information, then Landlord may terminate this Lease by givingTenant thirty (30) days' prior written notice of same.Landlord reserves the right to add improvements to or redevelop the Site(including the Premises) in any manner, including, additional communications facilitiesnecessary for Landlord's or Montgomery County's communications needs, and inconnection therewith to relocate, at Landlord's sole expense, the CommunicationsFacility and the Premises. Within fifteen (15) days following approval ofLandlord's proposals to add any such improvements or redevelop the Site,Landlord shall provide written notice thereof to Tenant. Landlord shall makereasonable good faith efforts, including consultation with Tenant during theplanning stages therefor, to cause any such improvements or redevelopment to beperfoinied in a way that does not require relocation of the CommunicationsFacility and the Premises or undue interference to Tenant's use and operation ofthe Communications Facility. Landlord's reasonable good faith efforts and itsexercise of discretion shall be subject to Landlord's statutory responsibility tomake school decisions in the best interests of the students in the MontgomeryCounty Public Schools. However, if such interference cannot reasonably berectified through the cooperation of the parties and if no viable relocation site canbe mutually agreed to by the parties, then either party may terminate this Lease bygiving the other party thirty (30) days' prior written notice thereof. In the eventthat Tenant agrees, in its sole discretion, to accept relocation of th eCommunications Facility to another portion of the Site (the "New Premises"), th efollowing conditions shall apply:i. the New Premises must, in Tenant's sole and reasonable judgment, besubstantially equivalent in area and appropriateness for Tenant's purposes

with no degradation of signal transmission andlor reception quality;

ii . Tenant must be able, through the exercise of commercially reasonableefforts and the cooperation of Landlord, to obtain any governmentalapprovals for the relocation to and operation of the CommunicationsFacility from the New Premises;

iii. Subject to the requirements of Paragraphs 8 (a), 10 (b), 17 (d) and 17 (e),Landlord and Tenant will cooperate in good faith to schedule andeffectuate such relocation at a mutually acceptable time designed tominimize any disruption to both parties' operations, taking into accountthe nature of the equipment to be relocated, the need to modify or obtaingovernmental approvals, if any, the need to schedule any new engineeringor construction work and the needs and requirements of the MontgomeryCounty Public Schools and its students;

iv.pon relocation of all or a portion of the Communications Facility to the


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New Premises, all references in this Lease to the Premises shall bedeemed to refer to the New Premises and Tenant shall, at its expense,prepare drawings accurately depicting the New Premises, which shallreplace the pertinent portions of Exhibitndv.o the extent applicable, Exhibit B shall be revised to incorporate any newnon-exclusive rights-of-way necessitated by the foregoing relocation.Notwithstanding anything to the contrary contained herein, if Tenant, in itssole discretion, elects not to am - ee to the relocation of the CommunicationsFacility, Tenant may terminate this Lease upon thirty (30) days' writtennotice to Landlord. In the event that Tenant provides such notice ofteimination, Landlord shall have the right, in its sole and absolutediscretion, to withdraw its plans to relocate the Communications Facility,and in such event, Tenant's election to terminate shall be deemed null andvoid.

(f )andlord may, at its expense but without any charge from or cost to Tenant, use aportion of the Tower for mounting and operating additional communicationsequipment of Landlord or other Montgomery County or other governmentalagencies, provided that a structural analysis is performed, at Landlord's sole costand expense, to ensure that the Tower will support the additional equipment.Such additional equipment shall be mounted as agreed upon between Landlordand Tenant and shall not interfere with the operation of Tenant's equipment, orthat of other tenants collocated on the Tower

1 1 . COMPLIANCE WITH GOVERNMENTAL LAWS AND REQUIREMENTS. Tenantagrees to comply with all applicable govern-mental laws and regulations. Theadministrative approval for Tenant's Communications Facility is expressed in therecommendation of the Telecommunications Transmission Facility Coordinating Group(TTFCG), which approval is attached hereto and incorporated herein as Exhibit E.

12 . OWNERSHIP, SUBORDINATION AND NON-DISTURBANCE. Landlord covenantsand warrants that Landlord is seized of fee simple title or of good and sufficient interestto the Parcel and has full authority to enter into and execute this Lease. Landlord furthercovenants that there are no liens, judgments or impediments to title on the Premises otherthan those of record. At Landlord's option, this Lease shall be subordinate to anymortgage or other instrument by which Landlord from time to time may encumber all orpart of the Premises or right-of-way; provided, however, that every such mortgage and'orinstrument shall recognize the validity of this Lease in the event of a foreclosure ofLandlord's interest and also Tenant's right to remain in occupancy of the Premises solong as Tenant is not in default of this Lease. Tenant shall execute whatever instrumentsmay' reasonably be required to evidence this subordination clause, solely to the extent thatsuch instruments contain language specifically ackalowledging the continuing occupancyrights of Tenant in the event of such foreclosure or other divestiture.

13 . RESTORATION OF THE PREMISES. At the end of the term, whether by passage oftime or the exercise of any party of any right of termination, Tenant shall sun - ender thePremises to Landlord in the condition specified in this Paragraph. Tenant shall be7


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entitled to dismantle and remove, at Tenant's sole expense, the Communication Facility,its support structure, any antennae and all other alterations, additions, fixtures andimprovements made by Tenant to the Premises, less and except any support structure andany lights, antenna, equipment belonging either to the Landlord or any third parties.Such dismantling and removal shall be coordinated in advance with Landlord and shallbe scheduled and conducted as may be reasonably required by Landlord to avoid anyadverse impact on the use and operation of the Site. After such dismantling and removalis completed, Tenant shall restore the Premises to its condition before the improvementswere made, except for reasonable wear and tear, damage by casualty not caused byTenant, changes by Landlord, and equipment owned by Landlord or any third parties thatLandlord requires to remain.

14 .ELECOMMUNICATIONS POLICY. Tenant covenants and agrees that at all timesduring this Lease it shall comply with the Landlord's Policy on TelecommunicationTransmission Facilities, as amended from time to time and published on Landlord'sofficial website located at http://ww.mcps.k12.md.us..departments/policv/. A copy ofcurrent Board Policy ECN is attached hereto and incorporated herein as Exhibit G.1EFAULT. Tenant shall be considered in default of this Lease upon the happening ofany of the following:(a) A default of ten (10) days in payment of rent from the due date and Tenant's

failure to cure that default within thirty (30) days after written notice;(b ) A breach of any term, covenant or condition of this Lease other than payment ofrent continuing for more than thirty (30) days after Tenant's receipt of written

notice specifying the failure or neglect or such longer period as may reasonablybe required to correct such failure or neglect with exercise of due diligence, thenat the option of Landlord and upon :written notice to Tenant, Tenant's right ofpossession shall thereupon end and Landlord may pursue any legal and'orequitable remedies available to Landlord. If Landlord files an action to enforceany agreement contained in this Lease, or for breach of any covenant or conditionand Landlord prevails in such action, Tenant shall pay Landlord's reasonableattorneys' fees and court costs, all fees to be fixed by the court;

(c) The appointment of a receiver or trustee of Tenant's property, assimment for thebenefit of creditors of all or any of the property of Tenant (subject to Section22(c) hereinbelow), or commencement of any proceedings under any bankruptcyor insolvency law by or against Tenant (subject to the understanding that if suchproceedings are not voluntarily instituted by Tenant, no default will be deemed toexist hereunder unless such proceedings are not stayed by appeal or otherwisewithin sixty (60) days following such institution).

(d) In the event of default by Tenant and its failure to cure the default within thirty(30) days following written notice, Landlord may, at its option, terminate thisLease and reenter the Premises and again have, possess, and enjoy the same asand of its former estate. In the event of the re-entry and termination for default,the Landlord may, at its option, relet the Premises or any part 'thereof, for any use

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which it may deem reasonable, but the Landlord shall not be under any obligationto relet the Premises for any purpose other than that specified in this Lease. In theevent of termination for default under this Paragraph 15(d), Tenant shall be liablefor all direct losses and damages (including, but no t limited to net unpaid rent andreasonable attorneys' fees) as the Landlord may sustain as a result of Tenant'sdefault.If Landlord shall fail or neglect to keep and perform its obligations so as to causea breach of the Landlord's obligations, and such failure or neglect is not remediedwithin thirty (30) days (or such longer period as may reasonably be required tocorrect such failure or neglect with exercise of due diligence) after written noticefrom Tenant specifying such failure or neglect, then Tenant may terminate thisLease and pursue any legal and/or equitable remedies available to Tenant.

16. LICENSES AND PERMITS.(a ) Tenant shall make every effort with due speed and diligence to obtain, at Tenant's

sole expense, all of the certificates, permits and other approvals that may berequired by federal, state or local authorities for Tenant's use of the Premises asset forth in this Lease. Tenant agrees to present evidence at any time during theterm of this Lease or renewals of any extension thereof, that any and all necessarylicenses and permits continue in effect. Such evidence shall be presented withinten (10) days of receipt of the Landlord's request for such evidence.

(b) In the event any such applications should be finally rejected or any certificate,permit, license or approval issued to Tenant is canceled, expires or lapses, or isotherwise withdrawn or terminated by governmental authority, or soil boring testsare found to be unsatisfactory so that Tenant will be unable to use the Premisesfor the purposes set forth herein, Tenant shall have the right to terminate thisLease by giving Landlord thirty (30) days' prior notification of termination. Allrentals paid prior to said termination date shall be retained by Landlord on a prorata basis. Notwithstanding, anything to the contrary contained herein, if Tenantdoes not exercise its right to teiminate under this Paragraph 16 (b), Tenant shallremain liable for all of its responsibilities under this Lease, including the paymentof rent, but shall not have the right to conduct any operations hereunder until itprovides documentation reasonably acceptable to Landlord demonstrating that allnecessary certificates, permits, licenses and /or approvals have been issued orreinstated, as applicable under the particular circumstances.

17.ONSTRUCTION BY TENANT. [The parties acknowledge that portions of Paragraph17 may not apply to this particular Lease, especially if Tenant is co-locating itsequipment on an existing pole.](a)enant shall obtain all necessary approvals, including, without limitation, those

required by the Federal Aviation Administration (FAA) and the FederalCommunications Commission (FCC), for construction and operation of theCommunications Facility. After obtaining the necessary permits and approvalstherefor, and after obtaining Landlord's approval of its construction plans, Tenant,

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at its sole cost and expense, shall perform or cause to be performed all of thefollowing work:i. Replacing the existing light standard with a Monopole with a height up toone hundred fifty feet (150') above ground level. Tenant will remove thediscarded light standard from the Site and deliver it within MontgomeryCounty where directed by Landlord. Upon completion of the Monopole'sinstallation, title to the Monopole shall rest jointly in the Landlord and theTenant. Notwithstanding the requirements of Paragraph 17 (k), if, not lessthan ninety (90) days prior to the expiration or termination of this Lease,Landlord provides Tenant with written notice that Landlord desires to havethe Monopole remain at the Site subsequent to the expiration or terminationof this Lease, Tenant shall have the right, at its sole option, to: (i) conveyits title interest to the Monopole to Landlord on mutually acceptable terms;or (ii) convey its ownership interest in the monopole to a third party withLandlord's prior approval. In addition, if at Lease expiration ortermination the monopole will no longer serve the telecommunicationspurposes of any carrier on this school site, and if Landlord requires themonopole to continue to support stadium lights for the operation of thepublic school, then Tenant shall, at its sole option, either (i) reduce theheight of the monopole to a height comparable to the other existing stadiumlight pOles, or (ii) remove the Monopole and construct, at its sole cost andexpense, a substantially equivalent replacement monopole to be ownedsolely by Landlord following completion of construction.ii . Installing on the Monopole such types and numbers of antennae asmay be appropriate for Tenant's operations in accordance with the terms ofthis Lease, subject to Tenant's compliance with applicable governmentalregulations.iii. Installing landscaping and fencing as shown on Exhibit A.iv . Subject to Landlord's approval thereof as provided herein,performing or causing to be performed all other improvements and workassociated with the work described above that may lawfully be required byMontgomery County or any other governmental body or official havingjurisdiction, as part of or in connection with the work described above.v. Tenant shall install at its cost stadium lights upon the Monopoleprovided that the Landlord shall pay for and provide to Tenant the stadiumlights to be installed and provided that Landlord shall be responsible forany expenses incurred for the use of such lights, including but not limitedto utility costs. Landlord agrees that Tenant shall install the stadium lightsso that they operate off the Landlord's existing utility source.

(b )enant's agreement to perform or cause to be performed all of the work describedabove, all at Tenant's cost and expense, shall be construed broadly to provide forall costs and liabilities of such work, whether or not such costs are anticipated andwithout regard to Tenant's present estimates for the cost of same, so that all of10


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such work is fully and properly performed and paid for by Tenant, and uponcompletion of same the Site, as altered by such work, is as fully functional andsuitable for continued use by Landlord as it was prior to the start of Tenant'swork. Accordingly, the phrase "all work" shall include, without limitation, all ofthe following work actually performed or caused to be performed by Tenant at theSite, and Tenant's promise to pay for such work shall include, without limitation,all of the costs and liabilities associated with the following: all labor andmaterials; design work; legal and professional fees of Tenant's consultants; peliliitdrawings and materials; construction costs; construction equipment and materialsutilities extension or relocation; provision of protective fencing and other safetymeasures; maintenance; removal of construction related debris from the Site;liability, property and workers' compensation insurance premiums; bond fees;development and construction permits; inspections and approvals; re-sodding ofall disturbed areas not covered with impervious surface; replacement or relocationof landscaping; re-striping of paved areas for traffic control and parking;relocation, replacement or provision of new safety and traffic:directional signage;connection of new sidewalks, drives, parking areas and other facilities toLandlord's existing facilities; and repairs and restoration required as a result ofany damage to the Site caused in the prosecution of the work performed by orcaused to be performed by Tenant under this Lease.

(c ) Tenant shall cause construction of the Communications Facility to be commencedas soon as practicable after receipt of all necessary permits and approvals and tobe completed within a reasonable time thereafter, not to exceed one (1) year fromreceipt of necessary permits. Once its work on the Communications Facility isinitiated, Tenant shall diligently and continuously pro secute such w ork to finalcompletion (including obtaining all required inspections and approvals) in atimely manner in accordance with a schedule to be agreed upon by Landlord andTenant. Such schedule shall limit construction activities to such days and times asLandlord reasonably may require to avoid any material and adverse impacts onthe use and operation of the Site. Tenant shall keep Landlord fully apprized of itsprogress, and of any events that might impact the construction schedule. IfTenant fails to perform its work in accordance with the schedule approved byLandlord, including any Landlord-approved revisions thereto, and if such failurethreatens the safe, proper and timely operations or uses of the Site, then Landlordshall have the right to take all measures as it may deem necessary to avoid orabate any interference with such safe, proper and timely operations or uses.Landlord shall endeavor in good faith to give Tenant prior written notice beforecommencing any such measures and to coordinate with Tenant in determining themeasures that may be necessary, but Landlord reserves the unqualified right totake any and all measures that it may deem necessary to assure the safe, properand timely conduct of other operations or uses of the Site. Tenant shall permitLandlord's designated inspector full escorted access to all of Tenant'sconstruction areas during normal business hours and shall provide such inspectoraccess to all construction plans, drawings and other information reasonablyrequested.

(d) The Communications Facility shall be constructed by Tenant in a good and11


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workmanlike manner and in accordance with the plans, drawings andspecifications prepared and provided by Tenant for Landlord's prior review andwritten approval, which approval shall not be unreasonably withheld, conditionedor delayed. Construction and installation of the Communications Facility byTenant shall be in compliance with all applicable rules and regulations including,without limitation, the written specifications and requirements of Landlordpreviously made available to Tenant by Landlord and those of the OccupationalSafety and Health Administration ("OSHA"), the FCC, the FAA, and regulationsof any applicable governmental agency (town, county, state or federal) including,but not limited to the applicable requirements of the local planning and zoningand building, electrical, communications and safety codes of MontgomeryCounty, Maryland. Tenant, at its sole cost and expense, shall secure all necessarypermits and approvals required to permit the construction and operation of theCommunications Facility. Landlord agrees to cooperate reasonably with Tenantin any necessary applications or submissions required to pellnit construction andoperation of Tenant's Communications Facility as described herein, provided thatLandlord shall be reimbursed for all expenses incurred in providing suchcooperation within thirty (30) days of incurring the expenses, and providedfurther that obtaining Tenant's permits and approvals shall not result in theimposition of any material restrictions or limitations or adverse impacts on theSite or Landlord's use, operation improvement or redevelopment thereof. All ofTenant's work and facilities shall be installed free of mechanics', materialmen'sand other liens, and claims of any person. Tenant agrees to defend, with counselapproved by Landlord, and to indemnify and save Landlord harmless, from allloss, cost, damage or expense including, without limitation, reasonable attorneys'fees, occasioned by or a rising in connection with the work contemplated by thisLease, and shall bond off or discharge any such liens or other claims within thirty(30) days after written notice from Landlord.

(e )rior to commencing any activities on the Site pursuant to this Lease, Tenant shallprovide Landlord with evidence satisfactory to Landlord that Tenant and itscontractors and agents who will be working on the Site are covered by insuranceas required by Paragraph 20 hereof.If Landlord permits a third party to place its antennas on the Tower, Landlordshall, unless othenvise agreed between Tenant and such third party, require suchthird party to remit (in addition to any rent to which Tenant is entitled to receivefrom such third party pursuant to Paragraph 22 (e)) to Tenant its pro rata share(based on the number of users or antennae which the Tower will support, asjointly determined by Landlord and Tenant) of the construction costs, and/orlicensing fee and remit such sums to Tenant. Notwithstanding the foregoing, inno event shall Landlord have any liability to Tenant under this paragraph. andLandlord's failure to cause such sums to be remitted to Tenant shall not constitutea default hereunder, provided, however, that nothing in this Agreement and/or inany agreement between Landlord and such third party shall be construed torestrict any legal and/or equitable right or remedy of Tenant if such sums are notremitted to Tenant by such third party, including, without limitation, Tenant'sright to terminate any agreement it has entered pursuant to which such third party

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(g )is permitted to place its antennae on the Tower.Tenant's antennas shall operate only in the frequency range approved by thefederal agencies. If Tenant wishes to use a frequency or frequencies other thanth e approved frequency. Tenant shall request Landlord's permission in writingprior to receiving a frequency change from the FCC or other governmental agencyauthorized to establish frequencies. Landlord may grant or withhold suchpermission in its sole but reasonable discretion. Without limiting the generality ofthe foregoing, it shall be reasonable for Landlord to (a) withhold consent if otherantennas on the Site (whether or not owned by Landlord) are operating in therange requested by Tenant, (b) withhold consent if Landlord believes that itspolicy requiring co-location of transmitting antennas would not be served bypermitting Tenant to expand its frequencies. and/or (c) condition its consent onthe payment of additional rent. Nothing in this Lease shall be construed to limitLandlord's right to grant other parties the right to construct, operate or modifyTowers, equipment platforms or antennas on the Site (including the Tower, itbeing understood that such other parties would have no right to modify Tenant'sTower); provided, however, that such construction, operation or modificationdoes not interfere with the operation of Tenant's equipment platfoinis, antennas orthe Communications Facility.

(h ) Tenant acknow ledges that Landlord requires co - location of antennae located onthe Site to the extent permitted by engineering and aesthetic limitations. Tenantagrees to design and construct the Monopole to accommodate at least twoadditional users and/or antennae.Tenant shall, upon Landlord's request, fence and buffer the Premises or anyportion thereof. If the Communications Facility is to be constructed near anyexisting structure or structures on the Site, Tenant shall (a) construct theCommunications Facility so that it does not affect the structural integrity of theexisting structure or structures and (b) provide Landlord, at its request, with areport prepared by an independent third party p rofessional engineer confirmingthe structural integrity of the existing structure or structures following theconstruction of the Communications Facility.Tenant shall restore in compliance with the Federal Americans with DisabilitiesAct (ADA) (and any state or local law counterpart) any of Landlord's facilitiesphysically altered by Tenant's work, only if the altered facilities previouslycomplied with the ADA.Tenant shall not make further additions or improvements to the CommunicationsFacility or the Premises without first obtaining Landlord's written consent, whichconsent shall not be withheld, conditioned or delayed unreasonably.

Tenant shall install any electrical, radio, electromagnetic or other types ofprotectors deemed required by the Landlord or its consultant(s) to protect theLandlord's property and equipment from interference, damage or adverse impactcaused by Tenant's use of the Premises.

(i)

j

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( k)pon termination of the Lease, Tenant shall remove its equipment and restore thePremises to their former condition, except for reasonable wear and tear anddamage by casualty not caused by Tenant.( 1 )s long as the Communications Facility and equipment continue to serve ascollateral of a third party financing entity, Landlord waives any lien rights it mayhave concerning Tenant's Communications Facility which is deemed Tenant'spersonal property and not fixtures, and, as long as the Communications Facility andequipment continue to serve as collateral of a third party financing entity, Tenanthas the right to remove the same at any time without Landlord's consent. In theevent that the Communications Facility or any of its associated equipment ceases tobe subject to a security interest, Tenant shall provide Landlord with written noticethereof within thirty (30) da ys thereafter.

(m ) Landlord acknowledges that Tenant has entered into a financing arrangementincluding promissory notes and financial and security agreements for thefinancing of the Communications Facility (the "Collateral") with a third partyfinancing entity (and may in the future enter into additional financingarrangements with other financing entities). In connection therewith, Landlord (i)consents to the installation of the Collateral; (ii) disclaims any interest in theCollateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall beexempt from execution, foreclosure, sale, levy, attachment, or distress for anyRent due or to become due and that such Collateral may be rem oved at any timewithout recourse to legal proceedings as long as the Communications Facility andEquipment continue to serve as collateral of a third-party financing entity.

(n) Notwithstanding anything to the contrary contained in this Lease, Tenant shallhave the option, in its sole discretion, to convey title to the Monopole to Landlord,subject to all other applicable terms and conditions of this Lease. In the event thatTenant exercises the foregoing option, by written notice to Landlord as providedin this Lease, the terms of Paragraphs 17 (1) and 17(m) shall be deemed not toapply to the Monopole itself, but shall be deemed to apply only to the antennae,equipment, equipment shelter and other property of Tenant located at the Site inaccordance with the terms of the Lease.

(o) During the term of this Lease, and notwithstanding anything to the contrarycontained in this Agreement, Landlord may not sell, assign, mortgage, pledge,hypothecate, convey or otherwise transfer its interest in the Monopole without thewritten consent of Tenant.

18.NTERFERENCE. Tenant agrees to install and operate equipment of a type andfrequency which will not cause radio frequency interference with other forms of radiofrequency communications existing on Landlord's Parcel as of the date of this Lease. Inthe event Tenant's equipment causes such interference, Tenant agrees it will take all stepsnecessary to correct and eliminate the interference, consistent with appropriategovernment rules and regulations, upon receipt of written notification of the interference.If the interference is not corrected within thirty (30) days of receipt of notification (or

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such time as may reasonably be required with exercise of due diligence provided suchrepairs are begun within said 30 days), Tenant will cease operation of the equipmentcausing such interference until such interference is cured. Landlord shall require that allfuture radio operators desiring to use this location will first coordinate with Tenant toensure that their frequencies and antenna locations will be compatible with Tenant's so asto prevent harmful interference. Any subsequent tenants will be required to comply withthe same conditions set forth in this Paragraph 18.

19.NDEMNIFICATION. Tenant shall defend, with counsel reasonably acceptable toLandlord, and indemnify and hold harmless. Landlord from all losses, costs, claims,causes of actions, demands and liabilities arising from (a) any breach by Tenant of anycovenant of this Lease; (b) any misrepresentation by Tenant andlor any breach by Tenantof any warranty of Tenant contained in this Lease; and (c) any occurrence arising from (i)Tenant's construction, installation, maintenance, repair, operation, replacement orremoval of the Communications Facility or any other equipment, or any other activitiesof Tenant on the Premises, and (ii) the condition of the Communications Facility andPremises in any way related to Tenant's use of the Communications Facility of thePremises, including, without limitation, any personal injury, death, or other accident inany way related to Tenant's use of the Premises. Such indemnification shall include thecost of investigation, all expenses of litigation, and the cost of appeals, including, withoutlimitation, reasonable attorneys' fees and court costs, and shall be applicable to Tenant'sactivities on the Premises whether prior to the Commencement Date or after thetermination of this Lease. In addition to the Landlord, Landlord's board members, staff,officers, agents, servants, employees, volunteers, business invitees, customers, students,family members and guests shall be beneficiaries of the indemnification. Thisindemnification shall not be applicable to the extent of any negligence or willfulmisconduct of the Landlord, its board members, staff, officers, agents, servants,employees, volunteers, customers, business invitees, students, family members andguests.INSURANCE REQUIREMENTS.(a )ll property of the Tenant, its employees, agents, business invitees, licensees,

customers, clients or guests, in and on the Premises shall be and remain at the solerisk of the Tenant. and Landlord shall not be liable to them for any damage to, orloss of such personal property arising from any act of God or any persons, norfrom any other reason, unless such damage or loss is caused by the negligence orwillful act or failure to act on the part of the Landlord, its board members, staff,officers, employees, agents or volunteers, nor shall the Landlord be liable for theinterruption or loss to Tenant's business arising from any of the above describedacts or causes, unless such damage, interruption or loss is caused by thenegligence or willful act or failure to act on the part of the Landlord, its boardmembers, staff, officers, employees, agents or volunteers. The Landlord shall notbe liable for any personal injury' to the Tenant, its employees, agents, businessinvitees, licensees, customers, clients or guests arising from the use, occupancyand condition of the Premises unless such injury is caused by the negligence orwillful act or failure to act on the part of the Landlord, its board members, staff,officers, employees, agents or volunteers.

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(b )uring the term, Tenant will maintain a policy of commercial general liabilityinsurance insuring the Landlord and Tenant against liability arising out of the useoperation or maintenance of the Premises and the installation, repair,maintenance, operation, replacement and removal of the CommunicationsFacility. The insurance will be maintained for personal injury and propertydamage liability, adequate to protect Landlord against liability for injury or deathof any person in connection with the use, operation and condition of the Premises,and to insure the performance of Tenant's indemnity set forth in Paragraph 19, inan amount not less than THREE MILLION DOLLARS ($3.000,000.00) peroccurrence/aggregate. During. the term. Tenant shall also maintain workers'compensation, employers' liability insurance, and automobile liability insurance.(i ) Worker's Compensation Insurance - Meeting all requirements ofMaryland law:

Bodily injury by accident: $100,000 each accidentBodily injury by disease: $100,000 policy limitsBodily injury by disease: $100,000 each employee

(ii) Minimum Automobile Liability:Bodily injury: 5500.000 each person/S1,000,000 each occurrence.Property Damage: 5500,000 each occurrence, including owned, hired, andnon-owned automobiles

(0)nsurance carried by Tenant will be with companies reasonably acceptable to theLandlord. The Tenant will deliver to the Director. Department of FacilitiesManagement, Montgomery County Public Schools, certificates evidencing theexistence and amounts of the insurance. No policy shall be cancelable or subjectto reduction of coverage or other modification except after thirty (30) days' priorwritten notice to the Landlord. Tenant shall, as soon as practicable followingrenewal or replacement of such policies (but in no event more than thirty (30)days thereafter), furnish Landlord with renewals or "binders" for replacementpolicies. or other assurances that the insurance coverage has been renewed.Notwithstanding anything to the contrary contained in this Lease, the failure ofTenant to maintain the insurance required under Paragraph 20 shall constitute anevent of default requiring cure by Tenant pursuant to Paragraph 15 (b), and thecoveraae requirements under Paragraph 20 (b) shall not be deemed to limitTenant's liability under this Lease.

(d )f Tenant desires to self-insure, Tenant shall submit a request to Landlord to bepermitted to self-insure. Such request shall be accompanied by financialstatements of Tenant audited by an independent, third party certified publicaccountant, and shall contain all relevant infoiivation regarding Tenant's self-insurance plan. Tenant shall provide Landlord with such further or additionalinformation as Landlord deems necessary in deciding whether to permit Tenant toself-insure. Landlord's decision whether to permit Tenant to self-insure shall be

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made in Landlord's sole and absolute discretion, shall be in writing, and shall beeffective for a twelve (12) month period from the date of Landlord's approval ofTenant's self-insurance request, subject to the following provision. If Landlordpermits Tenant to self-insure then (1) Tenant shall provide Landlord annuallywith updated financial statements, prepared as set forth above, for Landlord'sreview and approval, and (ii) immediately notify Landlord of any act oroccurrence which might materially reduce Tenant's net worth or financialcondition, or impair Tenant's self-insurance program.

(e ) Tenant will not do anything or permit anything to be done or any ha7ardouscondition to exist ("Increased Risk") which would invalidate or cause thecancellation of the insurance policies carried by Tenant. In the event that anysuch Increased Risk arises, Tenant shall promptly remedy the condition causingsuch Increased Risk in accordance with the procedures set forth in Paragraph 7 ofthis Lease.

(f) The Landlord shall be named as an "additional insured" on Tenant's liabilitypolicies.The coverage amounts set forth may be met by a combination of underlying andumbrella policies, so long as in combination the limits equal or exceed thosestated.

HAZARDOUS MATERIALS .(a)enant shall not cause or permit any hazardous or toxic wastes, substances ormaterials (collectively, "Hazardous Materials") to be used, generated, stored ordisposed of on, under or about, or transported to or from, the Premises(collectively "Hazardous Materials Activities") without first receiving Landlord'swritten consent, which may be withheld for any reason whatsoever and whichmay be revoked at any time, and then only in compliance (which shall be at

Tenant's sole cost and expense) with all applicable legal requirements and usingall necessary and appropriate precautions. Tenant shall indemnify, defend withcounsel reasonably acceptable to Landlord and hold Landlord harmless from andagainst any claims, damages, costs and liabilities, including court costs and legalfees, arising out of Tenant's Hazardous Materials Activities on, under or about thePremises, regardless of whether or not Landlord has approved Tenant'sHazardous Materials Activities. For the purposes of this Lease, HazardousMaterials shall include but not be limited to oil, radioactive materials. PCBs, andsubstances defined as "hazardous substances" or "toxic substances" in theComprehensive Environmental Response. Compensation and Liability Act of1980, as amended. 42 U.S.C. Sec. 9601 et seq.; Hazardous MaterialsTransportation Act, 49 U.S.C. Sec. 1801 et seq.: and Resources Conservation andRecovery Act, 42 U.S.C. Sec. 6901 et seq., and those substances defined as"hazardous wastes" in the regulations adopted and publications promulgatedpursuant to said laws. Subject to the foregoing provisions of this Paragraph,Tenant shall, prior to the Commencement Date, submit to Landlord forLandlord's review and approval, a list of Hazardous Materials Activities,

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including types and quantities, which list to the extent approved by Landlord shallbe attached hereto as Exhibit C. Prior to conducting any other HazardousMaterials Activities, Tenant shall update such list as necessary for continuedaccuracy. If Tenan t's activities violate or create a risk of violation of any legalrequirements, such activities shall cease immediately upon written notice fromLandlord. Landlord, Landlord's representatives and employees may enter thePremises upon prior notice to Tenant at any reasonable time during the term toinspect Tenant's compliance herewith, and, if required under applicable law, maydisclose any violation of legal requirements to any governmental agency withjurisdiction.he Landlord represents that: (i) it has not, and, to the best of itsknowledge, and except for ordinary herbicides and pesticides used in normal lawnmaintenance, it has not allowed or permitted any Hazardous Materials to be used,generated, stored, or disposed on, under or about or transported to or from theParcel in violation of any applicable law or regulation; and (ii) it will not, nor willit permit any third party to use, generate, store or dispose on, under or about, ortransport to or from the Parcel any Hazardous Materials in violation of anyapplicable law or regulation.

(b) Landlord acknowledges that Tenant's equipment shelter shall contain batteries forback-up power and that, provided Tenant's use of same is in compliance with thisprovision, the presence of such batteries does not violate this provision if suchbatteries comply with all laws, regulations and ordinances relating to HazardousMaterials.

(c ) Tenant will immediately notify Landlord and provide copies upon receipt of allwritten complaints, claims, citations, demands, inquiries, reports, or noticesrelating to the condition of the Premises or compliance with environmental laws.Tenant shall promptly cure and, if feasible under the applicable circumstances,have dismissed with prejudice any of those actions and proceedings to thereasonable satisfaction of Landlord. Tenant will keep the Premises free of anylien imposed pursuant to any environmental laws. Tenant shall have the right,from time to time, to submit written inquiries to Landlord with respect to theexistence of any written complaints, claims, citations, demands, inquiries, reports,or notices relating to the condition of the Site or compliance with environmentallaws. Landlord shall respond to any such written inquiries within fifteen (15)business days after receipt thereof by Landlord. In the event that any such writtencomplaints, claims, citations, demands, inquiries.. reports, or notices do in factexist, Landlord also shall advise Tenant as to the current status of Landlord'sefforts to comply therewith. If Tenant determines that Landlord has not promptlycured the conditions leading to the issuance of any such complaints, claims,citations, demands, inquiries, reports or notices, Tenant shall have the right toterminate this Lease on thirty (30) days' written notice to Landlord.

Landlord shall have the right at all reasonable times and from time to time toconduct environmental audits of the Prem ises, and Tenant shall cooperate in theconduct of those audits. The audits will be conducted by a consultant ofLandlord's choosing, and if any Hazardous Materials generated, stored,


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(e )

transported or released by Tenant are detected that are not in compliance withlocal, state or federal laws and regulations or if a violation of any of therepresentations or covenants in Paragraph 21 is discovered, the fees and expensesof such consultant will be borne by Tenant.

If Tenant fails to com ply with any of the foregoing, representations and cove nants,Landlord may cause the removal (or other cleanup acceptable to Landlord) of anyHazardous Materials from the Premises. The reasonable costs of removingHazardous Materials and any other cleanup (including transportation and storagecosts) shall be reimbursed by Tenant within thirty (30) days after Landlord'spresentation of invoices therefor. Tenant will give Landlord access to thePremises to remove or otherwise clean up any Hazardous Materials. Landlord,however, has no affirmative obligation to remove or othemse clean up anyHazardous Materials, and this Lease will not be construed as creating any suchobligation.

ASSIGNMENT.Tenant may not assign this Lease or sublease the Premises without the writtenconsent of the Landlord. Notwithstanding the previous sentence, Tenant m ayassign this Lease or sublease the entire Prem ises, without Landlord's consent, toTenant's principal, affiliates or subsidiaries of Tenant or of Tenant's principal, orto any corporation, partnership or other entity which (i) is controlled by,controlling, or under common control with Tenant; (ii) shall merge or consolidatewith or into Tenant; or (iii) shall succeed to all or substantially all the assets,property and business of Tenant. In the case of such permitted assignment orsublease. Tenant shall within thirty (30) days provide to Landlord (a) the nameand address of the assignee. and (b) a document executed by the assi gn ee bywhich it acknowledges the assignment and assumption of all of Tenant'sobligations hereunder. In all other instances, Tenant may only assign or subleaseits rights and obligations upon Landlord's written consent. A condition precedentto each and every assignment or sublease shall be (i) that no default exists underthis Lease as of the date of such assignment or sublease; (ii) certification by suchassiviiee that it is in compliance with all applicable licensing requirements,including those of the FCC and other applicable agencies; and (iii) except in theeve nt of a transfer permitted pursuant to the second sentence of this paramaph,Landlord shall be entitled to all rentals in excess of the rental hereunder arisingf ro m a n y such sublease.

(b)or any assignment or sublease requiring the consent of the Landlord, Tenantwill, prior to entering into such assignment or sublease, submit in writing toLandlord (i) the name and address of the proposed assignee or subtenant, ( ii) thebusiness tellns of the prop osed assignm ent or sublease, ( iii) reasonablysatisfactory information as to the nature and character of the business of theproposed assignee, as to the nature of its proposed use of the Premises, (iv)banking, financial, or other credit information reasonably sufficient to enableLandlord to determine the financial responsibility and character of the proposedassignee or subtenant, and (v) the proposed form of assignment or sublease for

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Landlord's approval.(c )otwithstanding anything to the contrary contained in this Lease and after priorwritten notice to the Landlord, Tenant may assign, mortgage, pledge, hypothecateor otherwise transfer without consent its interest in this Lease to any financingentity, or agent on behalf of any financing entity to whom Tenant (i) hasobligations for borrowed money or in respect of guaranties thereof, (ii) hasobligations evidenced by bonds, debentures, notes or similar instruments, or (iii)has obligations under or with respect to letters of credit, bankers acceptances and

similar facilities or in respect of guaranties thereof.(d) Except for any assignment or sublease permitted by this Paragraph 22, Tenant

shall not grant to or permit any third party to exercise any rights to install, operateor maintain communications or other equipment on the Tower or the Premiseswithout Landlord's prior written approval, which approval may be given,withheld or conditioned on such temis as Landlord may require in its sole andsubjective discretion.

(e ) Tenant shall be allowed to license space on the Monopole structure to othertelecommunication providers who have received permission from Landlord tocollocate their equipment and Tenant shall be allowed to retain all rents associatedwith such collocation. Tenant may not enter into a license azreement for the useof Monopole space unless the prospective licensee has obtained necessaryapprovals from the Landlord and the Montgomery County Planning Board. Theparties agree that any licensee obtaining the necessary approvals shall negotiate aseparate agreement with the Tenant for Monopole space and a separate a greementwith the Landlord for a separate parcel of ground space.

23. INSPECTIONS. Tenant shall allow Landlord o r its agents access for the purpose ofinspecting the Premises, and upon prio r notification to Tenant, to enter the Premises orany part thereof at any reasonable time in a manner so as not to interfere with Tenant'suse of the Site. Landlord shall be accompanied by a representative of Tenant. Inaddition, without notice in the event of an emergency, Landlord shall be entitled to enterthe Premises or any part thereof in order to prevent injury to persons or property. Tenantshall at all times provide the Landlord copies of all keys needed to unlock all of the gatesand locks to the fences in the Premises.

24 . QUIET ENJOYMENT. Tenant shall be entitled to use and occupy the Premises duringthe Term hereof for the purposes herein permitted and subject to the temis and conditionsherein contained, without molestation or interference by Landlord.DAMAGE AND DESTRUCTION.(a)f the Premises or the Communications Facility are damaged or destroyed by

reason of fire or any other cause, or if damage tothe Premises or the

Communications Facility causes damage to portions of the Site or other propertyof Landlo rd, Tenant will imm ediately notify Landlord, and Tenant may, withinthirty (30) days after such damage, give written notice of its election to terminate

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this Lease and, subject to the further provisions of this Paragraph 25, this Leasewill cease on the tenth (10th) day after the delivery of that notice. Monthly rentwill be apportioned and paid to the time of termination. If this Lease is soterminated, Tenant will have no obligation to repair or rebuild theCommunications Facility, but shall comply with all provisions relating torestoration of the Premises and/or the Site, as set forth in Paragraphs 9. 13 and 17(j), if such damage or destruction is caused by the negligence or willfulmisconduct of Tenant, its board members, staff, officers, agents, servants,employees, volunteers, customers, business invitees or guests. This Paragraph 25shall not affect Tenant's obligations under Paragraphs 19, 20 and 21 of this Lease.If Tenant chooses to rebuild the Communications Facility rather than exercising,its termination rights under Paragraph 25 (a), monthly rent and additional rent willnot abate pending the repairs or rebuilding if such damage or destruction is causedby the negligence or willful misconduct of Tenant, its board members, staff,officers, agents, servants, employees, volunteers, customers, business invitees orguests.Landlord shall have no responsibility to Tenant or any collocating tenants fordamage or destruction of the Tower or any other collocation equipment which isdamaged or destroyed by fire or other casualty, unless such damage or destructionis caused by the negligence or willful actions of Landlord, its board members,staff, officers, agents, servants, employees or volunteers.

26.ONDEMNATION. If all or any part of the Premises is taken by eminent domain orsale in lieu thereof, and if said taking or sale renders the Premises unusable for itsintended purpose hereunder, then, at Landlord's or Tenant's option. this Lease may beterminated and there will be no further payment of rents except that which may have beendue and payable at the time of said taking or sale. In the event of a partial taking or saleand Tenant, subject to mutual agreement with Landlord, wishes to maintain its operation,Tenant may continue to use and occupy the Premises and Landlord shall reduce the rentalon the Premises by an amount proportionate to the part of the Premises taken by eminentdomain sale or other such legal action, and provided Tenant, at its sole cost, restores somuch of the Premises as remains to a condition substantially suitable for the purposes forwhich it was used immediately before the taking. Upon the completion of restoration,Landlord shall pay Tenant the lesser of the net award made to Landlord on account of thetaking (after deducting from the total award attorneys', appraisers', and other costsincurred in connection with obtaining the award), or Tenant's actual out-of-pocket cost ofrestoring the Premises, and Landlord shall keep the balance of the net award received inconnection with any taking subject to this paragraph.BINDING EFFECT. This Lease shall bind and inure to the benefit of the parties heretoand their respective successors and permitted assigns.

28.ECORDATION. Either party may record this Lease or a Memorandum of LeaseAgreement in the form annexed hereto as Exhibit H in the county land records, but suchrecording shall be at the sole expense of the requesting party and shall not burden theother party.

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29.OTICES. All notices, payments, demands and requests hereunder shall be in writingand shall be deemed to have been properly given when mailed by United States FirstClass, Registered or Certified Mail, postage prepaid, or by reliable overnight courier, andaddressed to the Landlord as follows:Board of Education of Montgomery County.-850 Hungerford DriveRockville, Maryland 20850Atm. Director of Facilities Management

with a copy, which will not constitute notice to:Reese & Carney, LLPCharter DriveColumbia, MD 21044Ann: Michael S. Molinaro, Esq.

and to Tenant as follows:T-Mobile Northeast LLC12920 SE 39 t h StreetBellevue, WA 98006.Attn. PCS Lease Administrator

with copies, which will not constitute notice to:T-Mobile Northeast LLC4 Sylvan WayParsippany, NJ 07054Attn: Lease Management Dept.T-Mobile Northeast LLC360 Newark-Pompton TurnpikeWayne, NJ 07470Attu: Lease Management Dept.

or to such other addresses as either of the parties may desiznate from time to time bygiving written notice as herein required.

30 .AIVER. No waiver by either party of any breach of any covenant, condition oragreement contained herein shall operate as a waiver of the covenant, condition oraueement itself or of any subsequent breach thereof.

31ARYLAND SEX OFFENDER LAW. Tenant shall require that anypersonicontractorisubcontractor who enters a contract with a public or non public school


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registered sex offender," in accordance with Maryland law. An employer or contractor whoviolates this requirement may be found guilty of a misdemeanor and if convicted may besubject to up to five years in prison and/or a $5,000 fine.

32 .NTIRE AGREEMENT. This Lease contains the entire agreement of the parties andtheir commitment to the terms hereof and may not be amended, altered or otherwisechanged except by subsequent writing signed by the parties to this Lease.Notwithstanding anything to the contrary set forth in this Lease, Landlord and Tenantagree that the following provisions of this Lease shall not be applicable if Tenant is notconstructing a tower or other structure or replacing an existing light standard with atower or other structure: (i) the portion of the second sentence in Paragraph 1 from"structure" through the end of such sentence; (ii) Paragraph 10 (f); (iii) Paragraph 17 (f).Any term or condition determined to be unenforceable or of no legal effect shall beseverable and have no effect on the remaining provisions of this Lease.

33. GOVERNANCE. This Lease shall be governed by, construed and enforced inaccordance with the laws of the State of Maryland.

34. CONFLICTS. Each party represents and warrants that no officer, employee or agent ofits organization has been or will be paid any sum or offered any gift, gratuity,employment or other consideration by or from the other party, its affiliates or agents inconnection with assistance in obtaining, arranging, negotiation or continuation of thisLease.IN WITNESS WHEREOF, the parties have caused this Lease to be signed by their

authorized representatives.

WITNESS:OR: BOARD OF EDUCATION OFMONTY COUNTYBy:Jerry D. e. t, Ed. D.Title: Superintendent of SchoolsDate:TENANT: T- 0 ORTHEAST LLCBy:Title: r,Date:-"-J ;:7 -.6 - Ir,;Perations23


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My Commission ExpirSTATE 0

s.-

STATE OF MARYLAND, COUNTY OF , tyl cit :I HEREBY CERTIFY that on this day of du J , 2008, before me,the subscriber, a Notary Public in and for the State aforesaid, personally appeared DR. JERRYD. WEAST, as representative for Montgomery County Public Schools, who made oath in dueform of law, under the penalties of perjury, that the matters and facts set forth in the foregoingdocument are true and correct to the best of his/her personal knowledge, information and belief,and that he/she freely and voluntarily executed this document for the purposes therein contained.AS WITNESS: my hand and Notarial Seal.

r ' L C LUfb .Notary Public',

COUNTY OF/#1o wit:I HEREBY CERTIFY that on this 5 day of , 2008, before me,the subscriber, a Notary Public in and for the State aforesaid, personally appearedC L:1,4-7 41.-tf:. 74 who acknowledged under oath that he is thefor T-Mobile Northeast LLC, and that he is duly authorized to execute this instrument on behalfof T-Mobile Northeast LLC.AS WITNESS: my hand and Notarial Seal.My Commission Expires:

Notary Public RO BERTA SN c 4 . 3 i - y Public

'uonirnigicin. BOR N STEINof 11:4 . JerseyExp;r& 3 7/03[10

24


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EXHIBIT B[Map Showing Non-Exclusive Right-of-Way and Easements]

To Be Provided If Necessary.

I ;

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EXHIBIT CHAZARDOUS MATERIALS ACTIVITIES - TENANT

Batteries, Battery Gel, Petroleum

31


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EXHIBIT DSCH OOL H OURS

(7:00 a.m. to 7:00 p.m., Monday through Friday)

COM M UN I T Y USEFor permission to enter the Premises after school and on weekends, the Tenant shallcontact the County Office of Com munity Use of Pub lic Facilities [(240-777-2706] regardingtheir schedule of activities.

32


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EIIBITERECOMMENDATION OF TELECOMMUNICATIONS TRANSMISSION

FACILITY COORDINATING GROUP (TTFCG)MCPBRem t-ill 4126/07MONTGOMERY COUNTY PLANNING DEPARTMENTTHE MARYLAND-NATIONAL CAPITAL. PARK AND PLANNING COMMISSION

April 11, 2007MEMORANDUM - MANDATORY REFERRALTO:ontgomery County Planning BoardVIA:ohn A. Carter, ChiefcW-Community-Based Planning Division

William R. Barron, Team Leader, Eastern CountyCommunity-Based Planning Divisioneam/

FROMalvin Nelson, Jr., Planner Coordinator, Eastern County Team (301-495-4619) 1k______ SUBJECT: Mandatory Referral No. 07601-MCPS-1: Spnngbrook High School,Telecommunications Monopole with Lights, 201 Valley Brook Drive, R-200

Zone, White Oak Master PlanSTAFF RECOMMENDATION: APPROVALPROJECT SUMMARYMontgomery County Public Schools has submitted, under . the Mandatory Referral process ,an application by T-Mobile Northeast LLC, to replace an existing stadium light pole atSpringbrook High School with a telermrnunicatiorts monopole that would hold fights for thestadium as well as telecommun ic ations antennas belonging to T-Mobile. The existing 91-foot high stadium light pole on the northeast side of the stadium would be replaced by a 99-foot high telecommunications monopole with stadium lights located at their present height.THE SITEThe Springbrook High School site comprises 27.4 acres and is located approximately2,000 feet west of New Hampshire Avenue between Valley Brook Drive and SpringbrookDrive. The school fronts onto Valley Brook Drive which provides the only vehicularaccess to the site. Adjacent to the site to the north and east are single-family homes inthe R-200 Zone. Single-family homes in the Rural Zone are located to the south. TheNorthwest Branch Stream Valley Park extends along the west and northwest boundary ofthe site. There is a 14-foot change in elevation from the stadium field and the nearbyparking area up to the rest of the school site. The school was built in 1960, renovated in1994, and comprises 305,000 square feet. There are about -500 parking spaces on thesite, divided into several areas, and all having access from Valley Brook Drive.Springbrook is a signature high school with an emphasis on information technology andhas an enrollment of over 1,900 students. A Mandatory Referral for stadium lights forSpringbrook High School was recommended for approval by the Planning Board on June12,-2003.

E7S7gia. Avenue, Silver Sprina, Maryland 20910 Director's O ce 301.495.4500 F 2 = 301.495.1310www.Mo ntgomeryPlan rtisig. org03% racpced pace,33


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THE SITEThe Springbrook High School site comprises 27.4 ass and is loce. 44%d approximately 2,000feet west of New Hampshire Avenue between Valley Brook Drive and Springbrook Drive.The school fronts onto Valley Brook Drive which provides the only vehicular access to thesite. Adjacent to the site to the north and east are single-family horns in the R-200 Zone.Single-family homes in the Rural Zone are located to the south. The Northwest BranchStream Valley Park extends along the west and northwest boundary of the site. There is a14-foot change in elevation from the stadium field and the nearby parking apea up to therest of the school site. The school was built in 1960, renovated in 1994, and comprises305,000 square feet. There are about 500 parking spa ce s on the site, divided into severalareas, and all having access from Valley Brook Drive. Springbrook is a signature highschool with an emphasis on information technobgy and has an enrollment of over 1,900students. A Mandatory Referral for stadium lights for Springb-rook High School wasrecommended for approval by the Planning Board on June 12, 2003.PROJECT DESCRIPTIONSpringbrook High School's stadium is currently illuminated by four poles with lightsmounted at 91 feet. T-Mobile proposes to remove one of the light poles located on thenortheast side of the stadium adjacent to the bleachers and replace it with a 99-foothigh telecommunications monopole with the existing stadium lighting located at theirpresent height. At the top of the monopole, T-Mobile would install an antenna array. 1-Mobile would also install electronic equipment on a 10-foot x 20-foot concrete pad withina 20-foot x 36-foot fenced compound near the proposed monopole. The .compound willbe enclosed by an 8-foot high chain link fence with privacy slatting.ANALYSISMaster PlanSpringbrook High School is located within the area of the White Oak Master Plan, thatwas adopted and approved in 1997. The Master Plan states that public schools are anessential component of community life and identity, and provide not only educational butrecreational services to the community as well.Development StandardsAs noted in the Project Description above, T-Mobile_proposes to have its ele-ctronicr-,=1..). .tti-It-fuot nience with p r ivacy slatting. Sec. '59-A-6.12. ofthe Zoning Ordinance requires that "if the nearest adjoining propeesidential zone, the equipment building or cabinet must be faced is classified inwith brick or othersuitable material on all sides and landscaped to a height of at least 3 feet." -ilehas stated that they will fully comply with this provision of the Zoning Ordinanc TM{see e-

_ ,e-ail, Attachment 7). 2


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ATTACHMENT a lSPRINGBROOK HIGH SCHOOL - MONOPOLE WITH LIGHTS

M powitiled en April OIL 2007 447 $44 Me located ow Ms* Wort yes - 2101K1NOTICET h i pirobaset. soosrm and kooPsorat Otertastor stews aneeris bead en covv* s6 1041,rielduce toPirilt* Wing:PrinrfGaisTP Depirtgrent et Peet adde ph. harrows -huesrpe C ort ors risuploo compulsion *V rrerr erX hi coieedrectroduted iretheet *mew peraraton bane LaavalP'hopecre Eras ere ocrroted ket aluiterit ego PrOperty ins to topocroptly :newt Imr aortal otwooprapker and strode nee b Irsorwsebi atInn* *KO ate. Pnelowinc nonine Wan overpaid Pram Ille-e-OC Doom wenn Pnernirliran 1 . 1MV PROW F EV24 010,01 Wnetr4 rOrINMIL"Mit trap it armed Pow a vanete date mrost. sod tree rex etata it* oh=twice ccence-,a n am ora locator*NW mt bittoono6roly scrams or us to ilmn. AS sap naarire R asomozerrithr, fr.. feeof suer trus tannin& TM"fOr rat tat S.*larne at a 1300 de Its sans woe oleos~ a srL weep tole ac sheg carecteametke utadined usee Thu mos Dew ttis *tYwane planer. perpoise le n K NCaer s Corricht tlSC

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A T T A C H M E N T 3

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springbrook lease 2008

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