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NG-S40TG52V 4838-3840-2878v.1 0052051-000032
BUILDING AND ROOFTOP LEASE AGREEMENT
This Building and Rooftop Lease Agreement (the "Agreement") made this day of
_________________________, 201__, between 304 Main Associates LLC, a Washington limited liability
company , with its principal offices located at 304 Mill Ave, Renton, Washington, hereinafter designated
LESSOR and Seattle SMSA Limited Partnership d/b/a Verizon Wireless with its principal offices at One
Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920 (telephone number 866-862-4404),
hereinafter designated LESSEE. LESSOR and LESSEE are at times collectively referred to hereinafter as the
"Parties" or individually as the "Party."
WITNESSETH
In consideration of the mutual covenants contained herein and intending to be legally bound
hereby, the Parties hereto agree as follows:
1. GRANT. In accordance with this Agreement, LESSOR hereby grants to LESSEE the right to
install, maintain and operate communications equipment (“Use”) in and/or upon that certain building or
facility owned, leased or controlled by LESSOR at 304 Main Ave, Renton, Washington (the “Property”).
The Property is legally described on Exhibit “A” attached hereto and made a part hereof. LESSEE’s
communications equipment will be installed on a portion of the Property consisting of approximately 150
square feet of exterior ground space outside the building along with exterior mounted equipment on the
façade and rooftop of the building (the “Premises”). The Premises are shown in detail on Exhibit “B”
attached hereto and made a part hereof.
2. INITIAL TERM. This Agreement shall be effective as of the date of execution by both
Parties (“Effective Date”). The initial term of the Agreement shall be for 5 years beginning on the first day
of the month following the Commencement Date (as hereinafter defined). The “Commencement Date”
shall be the first day of the month after LESSEE begins installation of LESSEE’s communications equipment.
3. EXTENSIONS. This Agreement shall automatically be extended for 4 additional 5 year
terms unless Lessee terminates it at the end of the then current term by giving LESSOR written notice of
the intent to terminate at least 3 months prior to the end of the then current term. The initial term and
all extensions shall be collectively referred to herein as the “Term”.
4. RENTAL.
(a). Rental payments shall begin on the Commencement Date and be due at a total annual
rental of $18,000, to be paid in equal monthly installments of $1,500 on the first day of the month, in
advance, to LESSOR at 304 Main Ave, Renton Washington or to such other person, firm, or place as LESSOR
may, from time to time, designate in writing at least 30 days in advance of any rental payment date by
notice given in accordance with Paragraph 22 below. LESSOR and LESSEE acknowledge and agree that the
initial rental payment shall not be delivered by LESSEE until 60 days after the Commencement Date. Upon
agreement of the Parties, LESSEE may pay rent by electronic funds transfer and in such event, LESSOR
agrees to provide to LESSEE bank routing information for such purpose upon request of Lessee.
(b). For any party to whom rental payments are to be made, LESSOR or any successor in
interest of LESSOR hereby agrees to provide to LESSE (i) a completed, current version of Internal Revenue
Service Form W-9, or equivalent; (ii) complete and fully executed state and local withholding forms if
required; and (iii) other documentation to verify LESSOR’s or such other party’s right to receive rental as
RECEIVED
04/10/2018
amorganroth
PLANNING DIVISION
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is reasonably requested by LESSEE. Rental shall accrue in accordance with this Agreement, but LESSEE
shall have no obligation to deliver rental payments until the requested documentation has been received
by LESSEE. Upon receipt of the requested documentation, LESSEE shall deliver the accrued rental
payments as directed by LESSOR.
5. ACCESS. LESSEE shall have the non-exclusive right of ingress and egress from a public
right-of-way, 7 days a week, 24 hours a day, over the Property to and from the Premises for the purpose
of installation, operation and maintenance of LESSEE’s communications equipment. Without limitation,
the Premises may include certain space within the building, on the roof of the building or elsewhere on
the building sufficient for the installation, operation and maintenance of communications equipment.
Notwithstanding anything to the contrary, the Premises shall include (1) such additional space necessary
for the installation, operation and maintenance of wires, cables, conduits and pipes running between and
among the various portion of the Premises and to all necessary electrical, telephone, fiber and other
similar support services located within the Property or the nearest public right of way, and (2) such
additional space sufficient for LESSEE’s radio frequency signage and/or barricades as are necessary to
LESSEE’s compliance with Laws (as defined in Paragraph 29). In the event it is necessary, LESSOR agrees
to grant LESSEE or the provider the right to install such services on, through, over and/or under the
Property, provided the location of such services shall be reasonably approved by LESSOR.
6. CONDITION OF PROPERTY. LESSOR shall deliver the Premises to LESSEE in a condition
ready for LESSEE’s Use and clean and free of debris. LESSOR represents and warrants to LESSEE that as of
the Effective Date, the structure of the building (including without limitation the roof, foundations,
exterior walls), the common areas and all building systems (including, without limitation, the plumbing,
electrical, ventilating, air conditioning, heating, and loading doors, if any) are (a) in good operating
condition and free of any leakage; (b) in compliance with all Laws; and (c) in compliance with all EH&S
Laws (as defined in Paragraph 26).
7. ELECTRICAL.
(a). If permitted by the local utility company serving the Premises, LESSEE shall furnish
and install an electrical meter at the Premises for the measurement of electrical power used by LESSEE at
the Premises and LESSEE shall pay the utility company directly.
(b). If an electrical meter is not permitted, then LESSEE may furnish and install an
electrical sub-meter at the Premises for the measurement of electrical power used by LESSEE at the
Premises and shall pay the utility company directly if permitted by the utility company.
(c). In the event a sub-meter is installed and the utility company will not permit LESSEE
to pay the utility company directly, then the LESSOR shall read LESSEE’s sub-meter on a monthly basis and
provide LESSEE with an invoice for LESSEE’s power consumption on an annual basis. Each invoice shall
reflect charges only for LESSEE’s power consumption based on the average kilowatt hour rate actually
paid by LESSOR to the utility, without mark up or profit.
(d). All invoices for power consumption shall be sent by LESSOR to LESSEE at Verizon
Wireless, M/S 3846, P.O. Box 2375, Spokane, WA 99210-2375, and shall be provided to LESSEE within 90
days following the conclusion of each calendar year (otherwise, LESSOR waives the right to collect
applicable electrical charges). Upon written request form LESSEE, LESSOR shall provide copies of
electricity bills received by LESSOR during any period that LESSOR submits invoices to LESSEE for
reimbursement and for that same period LESSOR shall provide documentation of the sub-meter readings
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applicable to such periods. LESSEE shall pay each invoice within 45 calendar days after receipt of the
invoice from LESSOR.
(e). LESSEE shall be permitted to install, maintain and/or provide access to and use of, as
necessary (during any power interruption at the Premises), a temporary power source, and all related
equipment and appurtenances within the Premises, or elsewhere on the Property in such locations as
reasonably approved by LESSOR. LESSEE shall have the right to install conduits connecting the temporary
power source and related appurtenances to the Premise.
8. IMPROVEMENTS. The communications equipment including, without limitation,
antennas, conduits, and other improvements shall be at LESSEE’s expense and installation shall be at the
discretion and option of LESSEE. LESSEE shall have the right to replace, repair, add or otherwise modify
its communications equipment, antennas, conduit or other improvements or any portion thereof and the
frequencies over which the communications equipment operates, whether or not any of the
communications equipment, antennas, conduits or other improvements are listed on any exhibit.
9. GOVERNMENT APPROVALS. LESSEE’s Use is contingent upon LESSEE obtaining all of the
certificates, permits and other approvals (collectively the “Government Approvals”) that may be required
by any Federal, State or Local authorities (collectively, the “Governmental Entities”) as well as a
satisfactory structural analysis of the building or other structure that will permit LESSEE’s Use. LESSOR
shall cooperate with LESSEE in its effort to obtain such approvals and shall take no action which would
adversely affect the status of the Property with respect to LESSEE’s Use.
10. TERMINATION. LESSEE may, unless otherwise stated, immediately terminate this
Agreement upon written notice to LESSOR in the event that (i) any applications for such Governmental
Approvals should be finally rejected; (ii) any Governmental Approval issued to LESSEE is canceled, expires,
lapses or is otherwise withdrawn or terminated by any Government Entity; (iii) LESSEE determines that
such Governmental Approvals may not be obtained in a timely manner; (iv) LESSEE determines any
structural analysis is unsatisfactory; (v) LESSEE, in its sole discretion, determines the Use of the Premises
is obsolete or unnecessary; (vii) with 3 months prior notice to LESSOR, upon the annual anniversary of the
Commencement Date; or (viii) at any time before the Commencement Date for any reason or no reason
in LESSEE’s sole discretion.
11. MAINTENANCE. LESSEE will maintain LESSEE’s communication equipment within the
Premises in good condition, reasonable wear and tear and casualty damage excepted. LESSOR shall
maintain, in good operating condition and repair, the structural elements of the building and the Premises,
and all building systems (including, but not limited to, the foundations, exterior walls, structural condition
of interior bearing walls, exterior roof fire sprinkler and/or standpipe and hose or other automatic fire
extinguishing system, fire hydrants, parking lots, walkways, parkways, driveways, landscaping, fences,
signs and utility systems serving the common areas) and the common areas.
12. INDEMNIFICATION. Subject to Paragraph 13, each Party shall indemnify and hold the
other harmless against any claim of liability or loss from personal injury or property damage resulting from
or arising out of the negligence or willful misconduct of the indemnify Party, its employees, contractors
or agents, except to the extent such claims or damages may be due to or caused by the negligence or
willful misconduct of the other Party, or its employees, contractors or agents. The indemnified Party will
provide the indemnifying Party with prompt, written notice of any claim covered by this indemnification;
provided that any failure of the indemnified Party to provide any such notice, or to provide it promptly,
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shall not relieve the indemnifying Party from its indemnification obligation in respect of such claim, expect
to the extent the indemnifying Party can establish actual prejudice and direct damages as a result thereof.
The indemnified Party will cooperate appropriately with the indemnifying Party in connection with the
indemnifying Party’s defense of such claim. The indemnifying Party shall defend any indemnified Party,
at the indemnified Party’s request, against any claim with counsel reasonably satisfactory to the
indemnified Party. The indemnifying Party shall not settle or compromise any such claim or consent to
the entry of any judgment without the prior written consent of each indemnified Party and without an
unconditional release of all claims by each claimant or plaintiff in favor of each indemnified Party.
13. INSURANCE.
(a). The Parties agree that at their own cost and expense, each will maintain commercial
general liability insurance with limits not less than $2,000,000 for injury to or death of one or more
persons in any one occurrence and $2,000,000 for damage or destruction to the building in any one
occurrence. The Parties agree to include the other Party as an additional insured. The Parties hereby
waive and release any and all rights of action for negligence against the other which may hereafter arise
on account of damage to the Premises or the Property, resulting from any fire, or other casualty which
is insurable under “Causes of Loss – Special Form” property damage insurance or for the kind covered by
standard fire insurance policies with extended coverage, regardless of whether or not, or in what
amounts, such insurance is now or hereafter carried by the Parties, even if any such fire or other casualty
shall have been caused by the fault or negligence of the other Party. These waivers and releases shall
apply between the Parties and they shall also apply to any claims under or through either Party as a result
of any asserted right of subrogation. All such policies of insurance obtained by either Party concerning
the Premises or the Property shall waive the insurer’s right of subrogation against the other Party.
(b). LESSOR shall obtain and keep in force during the Term a policy or policies insuring
against loss or damage to the building with a commercially reasonable valuation, as the same shall exist
from time to time without a coinsurance feature. LESSOR’s policy or policies shall insure against all risks
of direct physical loss or damage (except the perils of flood and earthquake unless required by a lender
or included in the base premium), including coverage for any additional costs resulting from debris
removal and reasonable amounts of coverage for the enforcement of any ordinance or law regulating
the reconstruction or replacement of any undamaged sections of the building required to be demolished
or removed by reason of the enforcement of any building, zoning, safety or land use laws as the result of
a covered loss, but not including plate glass insurance.
14. LIMITATION OF LIABILITY. Except for indemnification pursuant to Paragraphs 12 and 26,
a violation of Paragraph 31, or a violation of law, neither Party shall be liable to the other, or any of their
respective agents, representatives, employees for any lost revenue, lost profits, loss of technology, rights
or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption
or loss of use of service, even if advised of the possibility of such damages, whether under theory of
contract, tort (including negligence), strict liability or otherwise.
15. INTERFERENCE.
(a). LESSEE agrees that LESSEE will not cause interference that is measurable in
accordance with industry standards to LESSOR’s equipment. LESSOR agrees that LESSOR and other
occupants of the Property will not cause interference that is measurable in accordance with industry
standards to the then existing equipment of LESSEE.
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(b). Without limiting any other rights or remedies, if interference occurs and continues
for a period in excess of 48 hours following notice to the interfering party via telephone to LESSEE’S
Network Operations Center (at (800) 224-6620/(800) 621-2622) or to LESSOR at (_____________), the
interfering party shall or shall require any other user to reduce power or cease operations of the
interfering equipment until the interference is cured.
(c). The Parties acknowledge that there will not be an adequate remedy at law for
noncompliance with the provisions of this Paragraph and therefore the Parties shall have the right to
equitable remedies such as, without limitation, injunctive relief and specific performance.
16. REMOVAL AT END OF TERM. Upon expiration or within 90 days of earlier termination,
LESSEE shall remove LESSEE’s Communications Equipment and restore the Premises to its original
condition, reasonable wear and tear and casualty damage excepted. LESSOR agrees and acknowledges
that the communications equipment shall remain the personal property of LESSEE and LESSEE shall have
the right to remove the same at any time during the Term, whether or not said items are considered
fixtures and attachments to real property under applicable laws. If such time for removal causes LESSEE
to remain on the Premises after termination of the Supplement, LESSEE shall pay rent at the then existing
monthly rate or on the existing monthly pro-rata basis if based upon a longer payment term, until the
removal of the communications equipment is completed.
17. HOLDOVER. If upon expiration of the Term the Parties are negotiating a new lease or a
lease extension, then this Agreement shall continue during such negotiations on a month to month basis
at the rental in effect as of the date of the expiration of the Term. In the event that the Parties are not in
the process of negotiating a new lease or lease extension and LESSEE holds over after the expiration or
earlier termination of the Term, then Lessee shall pay rent at the then existing monthly rate or on the
existing monthly pro-rata basis if based upon a longer payment term, until the removal of the
communications equipment is completed rental.
18. RIGHT OF FIRST REFUSAL. If at any time after this Agreement is fully executed, LESSOR
receives an offer or letter of intent from any person or entity that is in the business of owning, managing
or operating communications facilities or is in the business of acquiring landlord interests in agreements
relating to communications facilities, to purchase fee title, an easement, a lease, a license, or any other
interest in the Premises or any portion thereof or to acquire any interest in this Agreement, or an option
for any of the foregoing, LESSOR shall provide written notice to LESSEE of said offer (“LESSOR’s Notice”).
LESSOR’s Notice shall include the prospective buyer’s name, the purchase price being offered, any other
consideration being offered, the other terms and conditions of the offer, a description of the portion of
and interest in the Premises and/or this Agreement which will be conveyed in the proposed transaction,
and a copy of any letters of intent or form agreements presented to LESSOR by the third party offeror.
LESSEE shall have the right of first refusal to meet any bona fide offer of sale or transfer on the terms and
conditions of such offer or by effectuating a transaction with substantially equivalent financial terms. If
LESSEE fails to provide written notice to LESSOR that LESSEE intends to meet such bona fide offer within
thirty (30) days after receipt of LESSOR’s Notice, LESSOR may proceed with the proposed transaction in
accordance with the terms and conditions of such third party offer, in which event this Agreement shall
continue in full force and effect and the right of first refusal described in this paragraph shall survive any
such conveyance to a third party. If LESSEE provides LESSOR with notice of LESSEE’s intention to meet the
third party offer within thirty (30) days after receipt of LESSOR’s Notice, then if LESSOR’s Notice describes
a transaction involving greater space than the Premises, LESSEE may elect to proceed with a transaction
covering only the Premises and the purchase price shall be pro-rated on a square footage basis. Further,
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LESSOR acknowledges and agrees that if LESSEE exercises this right of first refusal, LESSEE may require a
reasonable period of time to conduct due diligence and effectuate the closing of a transaction on
substantially equivalent financial terms of the third party offer. LESSEE may elect to amend this Agreement
to effectuate the proposed financial terms of the third party offer rather than acquiring fee simple title or
an easement interest in the Premises. For purposes of this Paragraph, any transfer, bequest or devise of
LESSOR's interest in the Property as a result of the death of LESSOR, whether by will or intestate
succession, or any conveyance to LESSOR’s family members by direct conveyance or by conveyance to a
trust for the benefit of family members shall not be considered a sale for which LESSEE has any right of
first refusal.
19. RIGHTS UPON SALE. Should LESSOR, at any time during the Term of any Supplement
decide (i) to sell or otherwise transfer all or any part of the Property, or (ii) to grant to a third party by
easement or other legal instrument an interest in and to any portion of the Premises, such sale, transfer,
or grant of an easement or interest therein shall be under and subject to this Agreement and any such
purchaser or transferee shall recognize LESSEE's rights hereunder. In the event that LESSOR completes
any such sale, transfer, or grant described in this paragraph without executing an assignment of the
Agreement whereby the third party agrees in writing to assume all obligations of LESSOR under this
Agreement, then LESSOR shall not be released from its obligations to LESSEE under this Agreement, and
LESSEE shall have the right to look to LESSOR and the third party for the full performance of the
Agreement.
20. LESSOR’S TITLE. LESSOR covenants that LESSEE, on paying the rent and performing the
covenants herein, shall peaceably and quietly have, hold and enjoy the Premises. LESSOR represents and
warrants to LESSEE as of the Effective Date and covenants during the Term that LESSOR has full authority
to enter into and execute this Agreement and that there are no liens, judgments, covenants, easement,
restrictions or other impediments of title that will adversely affect LESSEE’s Use.
21. ASSIGNMENT. Without any approval or consent of the other Party, this Agreement may be
sold, assigned or transferred by either Party to (i) any entity in which the Party directly or indirectly holds
an equity or similar interest; (ii) any entity which directly or indirectly holds an equity or similar interest
in the Party; or (iii) any entity directly or indirectly under common control with the Party. LESSEE may
assign this Agreement to any entity which acquires all or substantially all of LESSEE's assets in the market
defined by the FCC in which the Property is located by reason of a merger, acquisition or other business
reorganization without approval or consent of LESSOR. As to other parties, this Agreement may not be sold,
assigned or transferred without the written consent of the other Party, which such consent will not be
unreasonably withheld, delayed or conditioned. No change of stock ownership, partnership interest or
control of LESSEE or transfer upon partnership or corporate dissolution of either Party shall constitute an
assignment hereunder.
22. NOTICES. Except for notices permitted via telephone in accordance with Paragraph 15,
all notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return
receipt requested or by commercial courier, provided the courier's regular business is delivery service and
provided further that it guarantees delivery to the addressee by the end of the next business day following
the courier's receipt from the sender, addressed as follows (or any other address that the Party to be
notified may have designated to the sender by like notice):
LESSOR: 304 Main Associates LLC
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Brad Faulkes
304 Main Ave
Renton, WA 98055
LESSEE: Seattle SMSA Limited Partnership
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the
foregoing.
23. SUBORDINATION AND NON-DISTURBANCE. Within 15 days of the Effective Date, LESSOR
shall obtain a Non-Disturbance Agreement, as defined below, from its existing mortgagee(s), ground
lessors and master lessors, if any, of the Property. At LESSOR's option, this Agreement shall be
subordinate to any future master lease, ground lease, mortgage, deed of trust or other security interest
(a “Mortgage”) by LESSOR which from time to time may encumber all or part of the Property; provided,
however, as a condition precedent to LESSEE being required to subordinate its interest in this Agreement
to any future Mortgage covering the building, LESSOR shall obtain for LESSEE's benefit a non-disturbance
and attornment agreement for LESSEE's benefit in the form reasonably satisfactory to LESSEE, and
containing the terms described below (the “Non-Disturbance Agreement”), and shall recognize LESSEE's
rights under this Agreement. The Non-Disturbance Agreement shall include the encumbering party's
(“Lender's”) agreement that, if Lender or its successor-in-interest or any purchaser of Lender’s or its
successor’s interest (a “Purchaser”) acquires an ownership interest in the building, Lender or such
successor-in-interest or Purchaser will honor all of the terms of the Agreement. Such Non-Disturbance
Agreement must be binding on all of Lender's participants in the subject loan (if any) and on all successors
and assigns of Lender and/or its participants and on all Purchasers. In return for such Non-Disturbance
Agreement, LESSEE will execute an agreement for Lender's benefit in which LESSEE (1) confirms that the
Agreement is subordinate to the Mortgage or other real property interest in favor of Lender, (2) agrees
to attorn to Lender if Lender becomes the owner of the building and (3) agrees to accept a cure by Lender
of any of LESSOR's defaults, provided such cure is completed within the deadline applicable to LESSOR. In
the event LESSOR defaults in the payment and/or other performance of any mortgage or other real
property interest encumbering the Property, LESSEE, may, at its sole option and without obligation, cure
or correct LESSOR's default and upon doing so, LESSEE shall be subrogated to any and all rights, titles, liens
and equities of the holders of such mortgage or other real property interest and LESSEE shall be entitled
to deduct and setoff against all rents that may otherwise become due under this Agreement the sums
paid by LESSEE to cure or correct such defaults.
24. DEFAULT. It is a “Default” if (i) either Party fails to comply with this Agreement and does
not remedy the failure within 30 days after written notice by the other Party or, if the failure cannot
reasonably be remedied in such time, if the failing Party does not commence a remedy within the allotted
30 days and diligently pursue the cure to completion within 90 days after the initial written notice, or (ii)
LESSOR fails to comply with this Agreement and the failure interferes with LESSEE’s Use and LESSOR does
not remedy the failure within 5 days after written notice from LESSEE or, if the failure cannot reasonably
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be remedied in such time, if LESSOR does not commence a remedy within the allotted 5 days and diligently
pursue the cure to completion within 15 days after the initial written notice. The cure periods set forth
in this Paragraph 24 do not extend the period of time in which either Party has to cure interference
pursuant to Paragraph 15 of this Agreement.
25. REMEDIES. In the event of a Default, without limiting the non-defaulting Party in the
exercise of any right or remedy which the non-defaulting Party may have by reason of such default, the
non-defaulting Party may terminate this Agreement and/or pursue any remedy now or hereafter available
to the non-defaulting Party under the Laws or judicial decisions of the state in which the Property is
located. Further, upon a Default, the non-defaulting Party may at its option (but without obligation to do
so), perform the defaulting Party’s duty or obligation. The costs and expenses of any such performance
by the non-defaulting Party shall be due and payable by the defaulting Party upon invoice therefor. If
LESSEE undertakes any such performance on LESSOR's behalf and LESSOR does not pay LESSEE the full
undisputed amount within 30 days of its receipt of an invoice setting forth the amount due, LESSEE may
offset the full undisputed amount due against all fees due and owing to LESSOR under this Agreement
until the full undisputed amount is fully reimbursed to LESSEE.
26. ENVIRONMENTAL. LESSEE shall conduct its business in compliance with all applicable
laws governing the protection of the environment or employee health and safety (“EH&S Laws”). LESSEE
shall indemnify and hold harmless the LESSOR from claims to the extent resulting from LESSEE’s violation
of any applicable EH&S Laws or to the extent that LESSEE causes a release of any regulated substance to
the environment. LESSOR shall indemnify and hold harmless LESSEE from all claims resulting from the
violation of any applicable EH&S Laws or a release of any regulated substance to the environment except
to the extent resulting from the activities of LESSEE. The Parties recognize that LESSEE is only licensing a
small portion of LESSOR’s property and that LESSEE shall not be responsible for any environmental
condition or issue except to the extent resulting from LESSEE’s specific activities and responsibilities. In
the event that LESSEE encounters any hazardous substances that do not result from its activities, LESSEE
may relocate its facilities to avoid such hazardous substances to a mutually agreeable location or, if LESSEE
desires to remove at its own cost all or some the hazardous substances or materials (such as soil)
containing those hazardous substances, LESSOR agrees to sign any necessary waste manifest associated
with the removal, transportation and/or disposal of such substances.
27. CASUALTY. If a fire or other casualty damages the Property or the Premises and impairs
LESSEE’s Use, rent shall abate until LESSEE’S Use is restored. If LESSEE’s Use is not restored within 45 days,
LESSEE may terminate this Agreement.
28. CONDEMNATION. If a condemnation of any portion of the Property or Premises impairs
LESSEE’s Use, Lessee may terminate this Agreement. LESSEE may on its own behalf make a claim in any
condemnation proceeding involving the Premises for losses related to LESSEE’s communications
equipment, relocation costs and, specifically excluding loss of LESSEE’s leasehold interest, any other
damages LESSEE may incur as a result of any such condemnation.
29. APPLICABLE LAWS. During the Term, LESSOR shall maintain the Property in compliance
with all applicable laws, EH&S Laws, rules, regulations, ordinances, directives, covenants, easements,
consent decrees, zoning and land use regulations, and restrictions of record, permits, building codes, and
the requirements of any applicable fire insurance underwriter or rating bureau, now in effect or which
may hereafter come into effect (including, without limitation, the Americans with Disabilities Act and laws
regulating hazardous substances) (collectively “Laws”). LESSEE shall, in respect to the condition of the
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Premises and at LESSEE’s sole cost and expense, comply with (i) all Laws relating solely to LESSEE’s specific
and unique nature of use of the Premises; and (ii) all building codes requiring modifications to the
Premises due to the improvements being made by LESSEE in the Premises. It shall be LESSOR’s obligation
to comply with all Laws relating to the Property, without regard to specific use (including, without
limitation, modifications required to enable LESSEE to obtain all necessary building permits).
30. TAXES.
(a). LESSOR shall invoice and LESSEE shall pay any applicable transaction tax (including
sales, use, gross receipts, or excise tax) imposed on the LESSEE and required to be collected by the LESSOR
based on any service, rental space, or equipment provided by the LESSOR to the LESSEE. LESSEE shall pay
all personal property taxes, fees, assessments, or other taxes and charges imposed by any Government
Entity that are imposed on the LESSEE and required to be paid by the LESSEE that are directly attributable
to the LESSEE’s equipment or LESSEE’s use and occupancy of the Premises. Payment shall be made by
LESSEE within 60 days after presentation of a receipted bill and/or assessment notice which is the basis
for such taxes or charges. LESSOR shall pay all ad valorem, personal property, real estate, sales and use
taxes, fees, assessments or other taxes or charges that are attributable to LESSOR’s Property or any
portion thereof imposed by any Government Entity.
(b). LESSEE shall have the right, at its sole option and at its sole cost and expense, to
appeal, challenge or seek modification of any tax assessment or billing for which LESSEE is wholly or partly
responsible for payment. LESSOR shall reasonably cooperate with LESSEE at LESSEE’s expense in filing,
prosecuting and perfecting any appeal or challenge to taxes as set forth in the preceding sentence,
including but not limited to, executing any consent, appeal or other similar document. In the event that
as a result of any appeal or challenge by LESSEE, there is a reduction, credit or repayment received by the
LESSOR for any taxes previously paid by LESSEE, LESSOR agrees to promptly reimburse to LESSEE the
amount of said reduction, credit or repayment. In the event that LESSEE does not have the standing rights
to pursue a good faith and reasonable dispute of any taxes under this paragraph, LESSOR will pursue such
dispute at LESSEE’s sole cost and expense upon written request of LESSEE.
31. NON-DISCLOSURE. The Parties agree this Agreement and any information exchanged
between the Parties regarding the Agreement are confidential. The Parties agree not to provide copies
of this Agreement or any other confidential information to any third party without the prior written
consent of the other or as required by law. If a disclosure is required by law, prior to disclosure, the Party
shall notify the other Party and cooperate to take lawful steps to resist, narrow, or eliminate the need for
that disclosure. Each Party may, without obtaining the other’s consent, provide such copies or make such
disclosures to Authorized Entities if such information pertains to that Authorized Entity.
32. MOST FAVORED LESSEE. LESSOR represents and warrants that the rent, benefits and
terms and conditions granted to LESSEE by LESSOR hereunder are now and shall be, during the Term, no
less favorable than the rent, benefits and terms and conditions for substantially the same or similar
tenancies or licenses granted by LESSOR to other parties. If at any time during the Term LESSOR shall offer
more favorable rent, benefits or terms and conditions for substantially the same or similar tenancies or
licenses as those granted hereunder, then LESSOR shall, within 30 days after the effective date of such
offering, notify LESSEE of such fact and offer LESSEE the more favorable offering. If LESSE chooses, the
parties shall then enter into an amendment that shall be effective retroactively to the effective date of
the more favorable offering, and shall provide the same rent, benefits or terms and conditions to LESSEE.
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LESSEE shall have the right to decline to accept the offering. LESSOR’s compliance with this requirement
shall be subject, at LESSEE’s option, to independent verification.
33. MISCELLANEOUS. This Agreement contains all agreements, promises and understandings
between the LESSOR and the LESSEE regarding this transaction, and no oral agreement, promises or
understandings shall be binding upon either the LESSOR or the LESSEE in any dispute, controversy or
proceeding. This Agreement may not be amended or varied except in a writing signed by all Parties. This
Agreement shall extend to and bind the heirs, personal representatives, successors and assigns hereto.
The failure of either party to insist upon strict performance of any of the terms or conditions of this
Agreement or to exercise any of its rights hereunder shall not waive such rights and such party shall have
the right to enforce such rights at any time. The performance of this Agreement shall be governed,
interpreted, construed and regulated by the laws of the state in which the Premises is located without
reference to its choice of law rules. Except as expressly set forth in this Agreement, nothing in this
Agreement shall grant, suggest or imply any authority for one Party to use the name, trademarks, service
marks or trade names of the other for any purpose whatsoever. LESSOR agrees to execute a
Memorandum of this Agreement, which LESSEE may record with the appropriate recording officer. The
provisions of the Agreement relating to indemnification from one Party to the other Party shall survive
any termination or expiration of this Agreement.
[Signature page follows. The remainder of this page is intentionally blank.]
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IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective seals
the day and year first above written.
LESSOR:
By:
Its:_______________________________
Date: _____________________________
LESSEE:
By:
Its: ______________________________
Date:
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EXHIBIT "A"
DESCRIPTION OF PROPERTY
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EXHIBIT "B"
SITE PLAN OF ROOFTOP SPACE, FLOOR SPACE
ANTENNA SPACE AND CABLING SPACE