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HomeMy WebLinkAboutContractLEASE AND LICENSE AGREEMENT BETWEEN THE CITY OF MEDINA AND ATC OUTDOOR DAS, LLC CORPORATION THIS LEASE AND LICENSE AGREEMENT (the "Agreement") is made as of the Effective Date by and between the City of Medina, a municipal corporation operating under the laws of the state of Washington as a "code city" (hereinafter called the "City"), and ATC Outdoor DAS, LLC, a Delaware limited liability company (hereinafter called "ATC"), (individually the "Party" or collectively the "Parties"). WITNESSETH: WHEREAS, the City is the owner of the real property particularly described in Exhibit A (the "Property"); and WHEREAS, ATC desires to construct, operate, maintain, and manage a Distributed Antenna System Base Station consisting of Facilities (defined below) on a portion of the Property; and WHEREAS, the City desires to grant ATC a lease over a portion of a City -owned building constructed on the Property as depicted on the site plan set forth in Exhibit B, together with a license over the Property for access and utilities as depicted on the site plan set forth in Exhibit C; and WHEREAS, the Parties desire to enter into a lease and license agreement setting forth the terms and conditions under which the Property may be accessed and the Facilities may be installed, constructed, operated, maintained, modified, upgraded, removed, replaced and managed on the Property. NOW, THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and ATC hereby agree as follows: ARTICLE 1. Definition. For purposes of this Agreement and the Exhibits attached hereto, the following terms, phrases, words and their derivations shall have the meanings given herein when capitalized. Words not defined herein shall have the meaning given pursuant to such federal statutes, rules, or regulations that apply to and regulate the services provided by ATC. Words not defined herein, or in such federal statutes, rules, or regulations that apply to and regulate the services provided by ATC, shall be given their- common and ordinary meaning. • "Affiliate" means another person who directly or indirectly owns or controls, is owned or LEASE AGREEMENT -1- January 14, 2011 controlled by, or is under common ownership or common control with ATC, or an ATC principal partners, shareholders, or owners of some other ownership interest. • "Effective Date" means the earlier of: (i) 210 days from the date of acceptance as evidenced by the date set forth upon the "Acceptance of Agreement" below; or (ii) the date the City notifies ATC that the construction permits are ready for issuance for the improvements identified in Exhibits B and C. A one-time extension of 120 days may be added by the City to the 210 days provided ATC requests the extension in writing prior to the expiration of the 210 days and pays a fee to the City of $2,500.00. • "Emergency" shall mean and refer to a sudden, generally unexpected occurrence, condition or set of circumstances that (a) significantly disrupts or interrupts the operation of the Facilities and ATC's ability to continue to provide services if immediate action is not taken, or (b) presents an imminent threat of harm to persons or property if immediate action is not taken. • "Environmental Law" means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law. • "Facilities" means the Distributed Antenna System Base Station, Feed Lines, and any and all other equipment, attachments, devices, cables, wiring, conduit, panels, cabinets, or property of any kind constructed, installed, located, or placed on or within the Structure and Premise (defined below) by or on behalf of ATC, its licensees, sublicensees or subtenants. • "Feed Lines" are cables used as the interconnecting media between the transmission/receiving base station and the antenna located in the public right-of-way. • "Hazardous Substance" means any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and any element, compound, mixture, solution, particle, or substance, which presents danger or potential danger for damage or injury to health, welfare, or to the environment, including, but not limited to: those substances which are inherently or potentially radioactive, explosive, ignitable, corrosive, reactive, carcinogenic, or toxic; those substances which have been recognized as dangerous or potentially dangerous to health, welfare, or to the environment by any federal, municipal, state, City, or other governmental or LEASE AGREEMENT -2- January 14, 2011 quasi -governmental authority, and/or any department or agency thereof; those substances which use, or have as a component thereof or therein, asbestos or lead -based paint; and petroleum oil and any of its fractions. • "Lease Area" means the area as depicted on the site plan set forth in Exhibit B. • "License Area" means the area as depicted on the site plan set forth in Exhibit C. • "Person" means and includes any individual, corporation, partnership, association, joint- stock -company, Limited Liability Company, political subdivision, public corporation, taxing districts, trust, or any other legal entity, but not ATC or its officials (elected or appointed), officers, employees, agents or contractors. • "Pro e means the real property at 1000 80th Avenue N.E., Medina, Washington and legally described in attached Exhibit A, together with all appurtenance and improvements located in, on, under or over the Property. • "Remedy", "Remediate" and "Remedial Action" mean and refer to those terms as they are defined under the Model Toxics Control Act (Chapter 70.105D RCW) and its implementing regulations at Chapter 173-340 WAC. • "Structure" shall mean and refer to the building located on the Property and commonly referred to as the City Shop as depicted in the site plan set forth in Exhibit B. • "Work" shall mean and refer to the activities of the Lessee, its agents, employees, contractors, subcontractors, subtenants, licensees, and sublicensees to construct, install, operate, maintain, repair, modify, remove and/or replace any of the Facilities or portions thereof within the Premises (defined below), including alterations to the Structure to accommodate the Facilities. ARTICLE 2. LEASE, LICENSE, PROPERTY. a. Lease and License. The City agrees to lease to ATC the Lease Area. Together with such lease, the City grants ATC a license on, over, across, and under the Property for the following purposes: (i) ingress and egress to the Lease Area and all Facilities; (ii) to install and connect Feed Lines from the Facilities to a location within the public right-of-way; (iii) to connect the Facilities to utility service, including sources of electric and telephone facilities; and (iv) to locate, operate, and maintain electrical and HVAC equipment; all upon the terms and conditions set forth herein and as depicted on Exhibit C. LEASE AGREEMENT -3- January 14, 2011 b. Acceptance. ATC does hereby agree to accept such lease and license from the City, and the rights to use the Structure, Lease Area, License Area and Property (collectively referred hereafter as the "Premises") as shown in Exhibits B and C, and in accordance with the terms and conditions of this Agreement. C. Structure Improvements. ATC agrees to make the necessary modifications to the Structure substantially as depicted in Exhibit B. The Parties agree that the improvements to the Structure are for the sole purpose of accommodating the Facilities in the Structure. Additional requirements applicable to installation, construction, maintenance, and repair are found at Article 12 of this Agreement. d. Inspection. The City shall have the right to inspect the Structure and Facilities during construction and installation and at reasonable times thereafter to the extent reasonably necessary to ensure compliance with .this Agreement. Entry upon the Lease Area after completion of construction or installation shall require a minimum of 48 hours notice in advance to ATC. e. Approvals. ATC's obligations hereunder are expressly conditioned upon ATC's ability to obtain, maintain, renew and reinstate all of the certificates, permits, licenses, zoning, variances and other approvals which may be required from any federal, state or local authority to construct, operate, maintain, modify, repair and/or replace its DAS network. The City shall reasonably cooperate with ATC, at no expense to the City, in ATC's attempt to obtain approvals. Nothing in this Agreement shall impose a duty upon the City to approve any permits, licenses, zoning variances or other approvals not consistent with Article 3. ARTICLE 3. PURPOSE; COMPLIANCE WITH LAW; RULES AND REGULATIONS. a. Purpose. ATC, its licensees, sublicensees and subtenants shall use the Premises for the installation, operation, maintenance, modification, repair, replacement and/or disconnection of the Facilities consistent with Exhibits B and C. ATC shall not use the Premise for any other purpose without prior written consent from the City. b. Use Non -Exclusive.. This use of the Premises shall be non-exclusive, and the City specifically reserves the right to allow the Structure to be used by other Persons and to make additions, deletions, or modifications to the Structure and the Property; provided that, the use of the Lease Area shall be exclusive to ATC and its licensees, sublicensees and subtenants, and the City shall not allow any additions, deletions, uses or modifications to the Premises that would interfere with use of the Lease Area or exercise of the license rights by ATC, its licensees, sublicensees and/or subtenants. LEASE AGREEMENT -4- January 14, 2011 C. Compliance. ATC shall fully and promptly comply, at ATC's sole cost and expense, with all lawful statutes, ordinances, rules, regulations, and governmental orders now or hereafter in effect and pertaining to the Property and/or the use or occupancy thereof by ATC and/or its assigns, subcontractors, licensees, sublicensees, subtenants, invitees, officers, agents, or employees. d. Use and Occupancy Rules. ATC shall comply with all use and occupancy rules and regulations of the City as now or hereafter amended or established; provided that such rules and regulations do not conflict with or derogate from the rights and privileges of ATC under this Agreement and such rules and regulations are commercially reasonable. e. Utility Improvements. ATC shall have the right to install utilities at ATC's sole cost and to improve the present utilities on the Property, if any. Installation of power generators, except in the case of an Emergency, must be approved in advance by the City and shall be located so as to minimize interference with use of the Property for park purposes. ATC shall be responsible for obtaining permission from the utility provider(s) for connection and access to any utilities. The cost of electric energy and any other utilities consumed by ATC, its licensees, sublicensees and/or subtenants shall be separately metered and at the sole cost and expense of ATC, its licensees, sublicensees and subtenants. f. Interference with Use. ATC agrees that its activities on the Property outside of the Lease Area and the Facilities shall not interfere with or impair the use of the Property for park purposes by the City, its employees, agents, contractors or subcontractors and shall not cause interference with any public safety communication system existing now or to be constructed and operating within the Property. In the event that such impairment or interference occurs, ATC shall immediately cure the impairment or interference upon verbal or other actual notice by the City and shall otherwise cease using the Facilities or cease other actions creating the impairment or interference until the impairment or interference is eliminated or reduced to a standard acceptable to the City. Interference with the City's use of the Property outside of the Lease Area for park purposes shall be considered a material breach of this Lease. The Parties agree that the activities authorized under the License in Article 2(a) above and in compliance with the Work Plan do not constitute interference with or impairment of use of the Property for park purposes. Similarly, the City shall not knowingly permit uses of the Property by others without rights prior in time to ATC that cause interference with the Facilities and ATC's use of the Premises. In the event any such interference does not cease promptly, the Parties acknowledge that continuing interference may cause irreparable injury and, therefore, each Party shall have the right, in addition to any other rights it may have at law or equity or pursuant to this Agreement, to bring a court action to enjoin such interference or to terminate this Agreement immediately upon written notice. LEASE AGREEMENT -5- January 14, 2011 ARTICLE 4. TERM/RENEWAL. a. Initial Term. This Agreement shall be for an initial term of ten (10) years, commencing as of 12:01 a.m. on the Effective Date. b. Renewal. The Agreement shall automatically renew upon the same terms and conditions for two additional five year renewal terms; provided that, ATC is not in default at the time of renewal, and neither Party has given notice of non -renewal. Notice of non -renewal must be given in writing and given no more than 180 days and no less than 90 days prior to the end of the initial or renewal term. Each renewal term shall commence, absent proper notice given of non -renewal, at midnight on the day following expiration of the term. ARTICLE 5. FEES. a. Lease Fee. Beginning upon the Effective Date, ATC covenants and agrees to pay the City, as consideration for its use of the Premises, an annual rental of $17,280.00 subject to adjustments as provided in Article 6 of this Lease, ("Lease Fee"), plus any and all applicable state and local taxes, including, but not limited to, a leasehold excise tax for which there is no applicable exemption, payable in advance on or before the 30th day following the Effective Date. Payment shall be made payable to "City Treasurer." No offset, reduction or credit toward the Lease Fee shall be allowed unless mutually agreed upon by the Parties. Thereafter, the adjusted Lease Fee, plus any and all applicable state and local taxes, shall be paid in advance no later than the 30th day following each annual anniversary date of the Effective Date of this Lease.. b. Overdue Payments. Any Lease Fee, additional charges, additional consideration, or any other sums payable by ATC to the City under this Agreement which shall not be paid within ten (10) days of the due date thereof, shall bear interest at a rate equal to twelve percent (12%) per annum, but not in excess of the highest lawful rate permitted under applicable laws, calculated from the original due date thereof to the date or payment. Further, any Lease Fee which shall not be paid within ten (10) days of the due date thereof shall be additionally subject to a late payment penalty equal to seven percent (7%) of the amount, not including interest. ARTICLE 6. FEESANSURANCE ADJUSTMENTS. a. Insurance. The City may review and amend this Agreement not more often than once every five years as it deems reasonably necessary for the purpose of imposing reasonable increases in the liability insurance coverage amounts in order to be consistent with coverage for other comparable properties and considering the City's loss exposure and LEASE AGREEMENT -6- January 14, 2011 inflation. Prior to imposing such additional coverage or adjusting existing required coverages or limits, the City shall provide reasonable notice, no less than ninety (90) days, to ATC and an opportunity to provide comments, and the City shall review and consider such comments that are timely made, prior to imposition of any increase. b. Annual Adjustments. The Lease Fee amount specified in Section 5(a) shall be subject to automatic annual adjustments of three (3) percent over the annual Lease Fee for the prior year. ARTICLE 7. TAXES. The Lease Fee set forth in this Agreement is exclusive of any sales, business, occupation, applicable leasehold, excise, personal property, or other taxes based on fees. Should any such taxes apply, or be enacted or increased during the life or this Agreement, ATC will reimburse the City for any such taxes, or increase in taxes, that apply (e.g., leasehold excise tax, personal property tax, utility tax, business and occupation tax), and, to the extent such new taxes, or increase in taxes apply to the City (e.g., real property tax), ATC will reimburse the City by the amount equal to the proportion of the occupancy of the Property by ATC. ATC understands that the tax is specified by state and local governments and may be subject to change. ARTICLE 8. OWNERSHIP. a. Use is Subordinate. The permission granted herein is subordinate and subject to any restrictive uses, covenants, easements, or other property rights existing in the Property at the time of execution of the Agreement. The City does not warrant that the restrictive uses of the Property authorize or allow the City to lease or license the Property for the uses described herein, and ATC understands and accepts such risk, and holds the City harmless from and against any damage, loss, expenses, or liability resulting from a failure of the City's authority to authorize the uses as provided herein. b. Assumption of Risk. Except as expressly authorized herein, ATC shall not damage or interfere with the City's use of the Property outside of the Lease Area for park purposes. C. Personal Property. The Facilities shall not become fixtures and shall remain the personal property of ATC, its licensees, sublicensees or subtenants. ATC and/or its licensees, sublicensees and subtenants shall have the right to remove the Facilities from the Premises at any time during the initial or any renewal term of this Agreement. The Facilities shall not be or become the property of the City except as provided in Article 14 below. LEASE AGREEMENT -7- January 14, 2011 ARTICLE 9. ASSIGNMENT. a. Assignment. ATC shall not assign this Agreement without the prior written approval of the City, which approval may not be unreasonably withheld; provided, ATC may assign this Agreement to any Affiliate upon 30 days prior written notice and unconditional acceptance in writing by the Affiliate of all terms and conditions of this Agreement together with its address for purposes of notice pursuant to Article 23 herein. b. Subletting. ATC may, at its option, sublet, license, sublicense, sublease, or otherwise consent to or authorize use or occupancy of the Premises or Facilities to those licensees, sublicensees and/or subtenants who use the DAS network for transmittal of signals. This shall also include the right to sublicense the license granted in Article 2 hereof, provided that, the right of ATC to grant a license to a third -party under the license rights granted pursuant to Article 2, Section (a)(ii) and (a)(iii), shall be limited to: (i) the right to occupy existing conduit installed within the License Area by ATC, its agents, employees, contractors and/or subcontractors (not including ATC's licensees or sublicensees); and (ii) the right to connect to utilities installed by ATC; its agents, employees, contractors and/or subcontractors (not including ATC's licensees or sublicensees). No other subletting is authorized. No rights granted by ATC to a . subtenant, licensee or sublicensee shall be any greater that the rights granted to ATC pursuant to the terms and conditions of this Agreement. C. Request in Writing. Each request for approval of an assignment must be in writing and the Parties, including the assignee, must enter into an agreement acceptable to the City; wherein the assignee will assume all rights, duties, and obligations that ATC has under the Agreement, will guarantee and be responsible for full compliance with the Agreement, will meet or exceed all applicable and lawful federal, state, and local requirements. The City may deny approval of an assignment if ATC is in default under the Agreement. Further, as a condition of assignment, the assignee shall comply with the insurance and other financial requirements under this Agreement as set forth at Article 16 herein. d. Consent to Assignment. The City hereby consents to the assignment by ATC of its rights under this Agreement as collateral to any Person providing financing for the purchase of the Facilities to be installed at the Premises. ARTICLE 10. CONSTRUCTION, INSTALLATION AND OPERATION OF FACILITIES. a. Notice. As required by any City permits, prior to commencing the construction of the Structure and initial installation of the Facilities, ATC shall give a minimum of 72 hours notice to the City of its intent to commence such construction and installation. LEASE AGREEMENT -8- January 14, 2011 b. Compliance, No Interference. ATC's Work to modify the Structure to accommodate the Facilities shall be performed lien free and in accordance with Exhibits B and C and all lawful and applicable laws, use and occupancy rules and regulations, other regulations, and building, construction, and other codes. ATC's Work to construct, install, operate, repair, replace, remove, and maintain the Facilities shall be performed lien free and in accordance with Exhibits B and C and all lawful and applicable laws, use and occupancy rules and regulations, other regulations, and building, construction, and other codes. Any damage done to the Structure or Property during construction or installation of the Facilities arising from any act or failure to act by ATC, its agents, employees, contractors, subcontractors, subtenants, licensees or sublicensees, or during operation of the Facilities arising from any act or failure to act by ATC, its agents, employees, contractors, subcontractors, subtenants, licensees or sublicensees, shall be repaired at ATC's expense within 30 days after notification of damage. C. Record Drawings. Upon completion of construction and installation of the Facilities by ATC or its subcontractor, licensee, sublicensees or subtenant, ATC shall provide record drawings consistent with Exhibits B and C. The record drawings shall be incorporated herein as though fully set forth as addendum 1 to Exhibits B and C. d. Compliance with Laws/Regulations. All of the Work undertaken by ATC, its agents, employees, licensees, sublicensees, subtenants, contractors, and subcontractor's as authorized herein (whether such Work is the modification of the Structure, the initial construction or installation of Facilities, or alterations, improvements or updates to Facilities) shall be undertaken and completed, at the sole cost and expense of ATC, its licensees, sublicensees and/or subtenants, in a good and workmanlike manner in accordance with good engineering practices and without liens and fully in conformance with all lawful applicable statutes, laws, ordinances, rules, and regulations, pursuant to valid governmental permits and authorizations with respect thereto. Notwithstanding anything herein to the contrary, any cabling installed shall meet the minimum requirements of all applicable codes, statutes, and/or ordinances. e. No Liability to the City. Except as may be otherwise provided herein, the City shall not be liable to ATC, its agents, employees, contractors, licensees, subtenants, invitees, and/or subcontractors for any injury, damage, or otherwise which may arise or occur should the operation of the Facilities be interrupted or prevented by fire, accident, strike, riot, act of God, or the making of necessary repairs or improvements to the Structure and Property, by the City, its employees, agents, or contractors. f. Equipment. No equipment other than that which is consistent with the purpose of this Agreement shall be installed by ATC, or its agents, employees, contractors, licensees, sublicensees, subtenants, invitees, and/or subcontractors without the City's consent. Upon LEASE AGREEMENT -9- January 14, 2011 request from the City, ATC will provide detailed information to the City regarding the Facilities to the extent such information is required by emergency responders to plan for or respond to an Emergency at the Premises. g. Cily Not Responsible. The City is not responsible for the care, maintenance, or security of the Lease Area or Facilities. ARTICLE 11. PERMITS. ATC shall obtain and pay all costs of building, electrical, or other construction or land use permitting as required by any governmental authorities having jurisdiction over the Work. ATC shall provide any drawings or documentation required by such governmental authorities for review of permit applications and related inspections. As a condition precedent to commencement of any Work on the Property, with the exception of site investigation, ATC shall prepare a work plan and submit the, work plan to the Public works director for review and approval. By way of example and not limitation, the work plan shall identify the means and methods for commencement and completion of the Work, a proposed construction schedule, a plan for the relocation and temporary storage of City Property during the Work, identification of the location for storage of materials and equipment during the Work, a workplace safety plan, identification of access points for ingress and egress to and from the work site, a plan for restoration of property that is disturbed or damaged, and identification of the project manager. The City will not unreasonably withhold or delay its review and approval or rejection of the proposed work plan. ARTICLE 12. OPERATION, MAINTENANCE, ALTERATIONS OR IMPROVEMENTS. a. eration. ATC, its licensees, sublicensees and subtenants shall have the right, at its sole cost and expense, to operate and maintain the Facilities on the Premises in accordance with good engineering practices, and with all applicable FCC rules and regulations. b. Maintenance. ATC, through its employees, contractors, licensees, sublicensees and subtenants, shall be solely responsible for the maintenance and care of the Facilities and shall, maintain the Facilities and the Lease Area in a clean, sanitary, attractive, and safe condition, in good repair, at least equal to the standard of maintenance of the Structure, and free of any defects and in accordance with accepted industry standards of technology and equipment at all times during the term of this Agreement. C. Facilities Modification. Before ATC may change the Facilities within the Lease Area from those shown on Exhibit B, ATC shall submit to City a detailed drawing LEASE AGREEMENT -10- January 14, 2011 identifying any such changes and any other information reasonably requested by the City regarding such changes. Thereafter, ATC shall, upon completion of the changes of Facilities, provide an updated record drawing in the manner provided in Section 10(c) herein. d. ATC's Expense. All construction, installation, additions, modifications, repairs, replacements and improvements shall be at the sole cost and expense of ATC, its licensees, sublicensees and subtenants. ATC agrees that the City shall not be liable for any damage, loss, or injury arising from any such additions, modifications, repairs, replacements or improvements, except to the extent that any damage, loss, or injury is due to the negligent or intentional acts or omissions of the City, its employees, agents, or contractors. e. Notice and Access. L' Access of Lease Area. Except as provided in subsection 2 below, upon completion of construction or installation of the Facilities, ATC, its employees, agents, contractors, subcontractors, subtenants, licensees and/or sublicensees may access the Lease Area and may have ingress/egress over the License Area at any time upon giving notice at least twenty-four (24) hours in advance, except in an Emergency, to the Public Works Director (or designee); provided that ATC acknowledges that the Property is a. public park and to the extent ATC, its agents, employees, contractors, subcontractors, subtenants, licensees and/or sublicensees intend to access the Lease Area and License Area outside of normal park hours, ATC shall notify the Medina Police Department in advance. 2. • Access to Portions of the Structure Outside the Lease Area. In those instances where ATC, its employees, agents, contractors, subcontractors, subtenants, licensees and/or sublicensees need to access portions of the Structure outside of the Lease Area for any reason, ATC, its employees, agents, contractors, subcontractors, subtenants, licensees and/or sublicensees shall arrange for entry to the portion of the Structure outside the Lease Area through the Public Works Department during regular business hours and, at all other times, through the Medina Police Department, The Director of Public Works (or designee), the Police Chief (or designee) and a representative of ATC shall meet at a mutually convenient time and location prior to completion of the Work .to develop and implement written procedures to provide for the security of the Structure outside the Lease Area and for access to the Structure outside the Lease Area by ATC, and may further mutually agree in writing to modifications that vary from the foregoing notice and access requirements. f. Emergency Facilities. - In the event of a natural or man-made disaster or a civil disturbance, in order to protect the health, welfare, and safety of the community, ATC may erect additional Facilities and install additional equipment on a temporary basis on the Lease Area to assure continuation of service. Such temporary operation shall not exceed 90 days LEASE AGREEMENT -11- January 14, 2011 unless ATC obtains written approval from the City and shall not impair, damage, or interfere with the use of the Property and Structure by the City. ARTICLE 13. DAMAGE OR DESTRUCTION. In the event the Structure is destroyed or damaged by earthquake, or other casualty, to such an extent as to render the same unsuitable for the intended use in whole or in substantial part thereof, it shall be an option of the City to repair or rebuild the same, and, in the meantime, the Lease shall be abated in the same proportion as the unsuitable portion of the Property bears to the whole thereof. This Agreement shall terminate effective as of the date of such damage or casualty unless the City, within 30 days after the happening of any such damage or casualty, shall give ATC written notice of its election to restore said Property. ARTICLE 14. TERMINATION/REMOVAL OF FACILITIES. a. ATC Default. Except as may be otherwise provided, ATC shall be in default in the performance of any material obligation required to be performed by ATC under the Agreement, if ATC has failed to perform such obligation (including, but not limited to, the payment of the Lease Fee) within 30 days after the receipt of notice from the City specifying in reasonable detail ATC's failure to perform; provided, however, if the nature of ATC's obligation (other than the payment of any monetary sum) is such that more than 30 calendar days are required for its performance, then the ATC shall not be deemed in default if it shall commence such performance within 15 days of receipt of such notice, and, thereafter, diligently pursues the same to completion. Upon any such default by ATC, the City may exercise any of its rights, provided in contract, law or at equity. b. City Default. The City shall be in default in the performance of any material obligation required to be performed by the City under the Agreement if the City has failed to perform such obligation within 30 days after the receipt of notice from ATC specifying in reasonable detail the City's obligation to perform; provided, however, if the nature of the City's obligation is such that more than 30 calendar days are required for its performance, then the City shall not be deemed in default if it shall commence such performance within 15 days and, thereafter, diligently pursues the same to completion. Upon any such default by the City, ATC may exercise any of its rights provided in contract, law or at equity, and shall have the right, but not the obligation, to cure any such event of default and to deduct the reasonable and actual costs incurred by ATC to cure such default, including reasonable legal fees and expenses, from the amounts next due and owing under the Agreement. C. Events of Termination. Except as otherwise provided herein, this Agreement may be terminated upon sixty (60) days written notice to the other Parry as f6llows: LEASE AGREEMENT -12- January 14, 2011 i. by either Party upon a default of any covenant or term hereof by the other Party, which default is not cured within sixty (60) days of receipt of written notice of default to the other Party (without, however, limiting any other rights of the Parties pursuant to any other provisions hereof); ii. by ATC for cause if it is unable to obtain or maintain any license, permit or other governmental approval necessary for the construction and/or operation of the Facilities or its DAS network; iii. by ATC if ATC determines, in its reasonable discretion, prior to the Effective Date, that the Premises are subject to a "Defect." For purposes of this subsection, a "Defect" shall mean one of the following, unless such Defect is waived by ATC in its sole discretion: (A) Environmental Condition. Any condition on or in the soil at the Property that requires Remedial Action under any Environmental Law, or that requires Remedial Action to install or construct the Facilities on the Property; provided that, such Remedial Action would result in an increase in the estimated cost for the Work by more than twenty-five percent (25%); (B) Title and Survey. Any material defect, encroachment, or exception to title that appears on a title commitment or survey for the Property that prohibits or makes commercially impracticable use of the Property for ATC's DAS base station hub; or (C) Condemnation. Any present or pending legal or administrative proceedings relating to condemnation or other taking by any governmental authority that prohibits or makes commercially impracticable use of the Property for ATC's DAS base station iv. by the City, if after an opportunity to cure consistent with this Article, ATC is found in a final appealable decision to have violated an applicable ordinance, or state or federal law, or any conditions attached to government approvals granted thereunder; v. by the City if ATC becomes either insolvent or files a proceeding in bankruptcy, or if a receiver is appointed; or vi. by the City in the event of an assignment of the Agreement in violation of Article 9. The requirements of Article 9 are deemed to be material conditions of this Agreement and no opportunity to cure is required as a pre -condition to termination by the City. LEASE AGREEMENT -13- January 14, 2011 d. Removal of Facilities. Upon termination or expiration of this Agreement, ATC shall have no more than sixty (60) days thereafter to remove the Facilities and repair, at its sole cost and expense, any damage caused to the Property and Structure by removal of all or any of the Facilities, and further, upon removal, shall restore the Property and any area damaged by its installation or removal to its original or better condition, normal wear and tear excepted. e. Failure to Remove. If ATC shall fail to remove any Facilities of any nature whatsoever from the Property within sixty (60) days following termination or expiration of this Agreement, or when sooner required under this Agreement, the City may remove and store said Facilities without liability for loss thereof or damage thereto, such storage to be for the account and at the expense of ATC. If ATC has not retrieved the property and paid the cost of storing any such property after it has been stored for a period of 60 days or more, the City may, at its option, sell or permit to be sold any or all such property at public or private sale in such manner and at such times and places as the City in its sole discretion may deem proper, without notice to ATC, unless notice is required under applicable statutes, and shall apply the proceeds of such sale: first, to the cost and expense of such sale, including reasonable attorneys' fees actually incurred; second, to the payment of the costs or charges for storing any such property; third, to the payment of any other sums of money which may then be or thereafter become due the City from ATC under any of the terms hereof; and fourth, the balance, if any, to ATC. f. Abandonment. Notwithstanding Article 14(d) of this Agreement, if ATC or its licensees, sublicensees, subtenants, or successors in interest provide the City with notice of intent to abandon all or any portion of the Facilities, all such Facilities may remain on the Property if the City elects, in its sole discretion, for such Facilities to remain on the Property after the termination or expiration date. In -the event the City elects, in writing, for such Facilities to remain on the Property, such Facilities shall become the property of the City without payment by the City and ATC shall provide whatever documents or authorization is necessary to transfer title. To the extent that Facilities include items of personal property that may be removed from the Property without harming the Property, or diminishing the value of the Property or the Facilities, the City asserts no ownership interest in these Facilities unless the Parties agree otherwise in writing upon termination of this Agreement. ATC shall notify the City at least 180 days before the termination or expiration date if it intends to leave the Facilities on the Property. The City shall then have 90 days in which to notify ATC that it wishes to have the Facilities removed or elects to have them remain. Failure to notify ATC shall be deemed an election by the City that the Facilities shall be removed from the Property. If the Facilities remain on the Property after the termination or expiration date without the City's written consent, they still will become the property of the City, if it chooses to own them, but the City may remove them and ATC shall pay the costs of removal and disposal upon City's demand. LEASE AGREEMENT -14- January 14, 2011 ARTICLE 15. INDEMNIFICATION. Except for any injury to persons or damage to property that is caused by or results from the gross negligence or intentional act of the City, its employees, contractors, licensees, invitees or its agents, and subject to the other provisions of this Agreement, ATC shall indemnify, defend, and hold the City and the City's employees and agents harmless from and against any and all demands, causes of action, fines, penalties, damages, liabilities, judgments, and expenses (including, without limitation, reasonable attorneys' fees) incurred in connection with or arising from: a. The use or occupancy of the Property by ATC, its agents, employees, contractors, subcontractors, subtenants, invitees, licensees, or sublicensees or any person legally claiming a right under ATC. b. Any activity, work, or thing done or permitted by ATC, its agents, employees, contractors, subcontractors, subtenants, invitees, licensees, or sublicensees, or any person legally claiming under ATC arising under the Agreement in or about the Property. C. Any breach by ATC or its employees, agents, contractors, subcontractors, licensees, or invitees of any provision or term of this Agreement. d. Any injury or damage to the person, property, or business of ATC, its employees, agents, contractors, subcontractors, subtenants, licensees, sublicensees or invitees entering upon the Property under the express invitation of ATC. e. Any violation by ATC, its agents, employees, contractors, subcontractors, invitees, or licensees, or any person claiming under ATC of the Americans With Disabilities Act and/or any other law, rule, code, or regulation. If any action or proceeding is brought against an Indemnified Party by reason of the foregoing, ATC, upon the written notice from such Indemnified Parry, shall defend the same at ATC's expense with counsel reasonably satisfactory to the City. In addition to the foregoing, ATC, as a material part or the consideration to the City for this Agreement, hereby waives and releases all claims against the City and the City`s employees and agents with respect to all matters for which the City has disclaimed liability pursuant to Article 10(e) and Article 19(c) and 19(e) of this Agreement. In indemnifying and holding City harmless as to ATC's employees, ATC waives immunity under industrial insurance law, Title 51 RCW. ATC specifically assumes potential liability for actions brought by ATC's own employees against the City and, solely for the purpose of LEASE AGREEMENT -15- January 14, 2011 this indemnification and defense, ATC specifically waives any immunity under the state industrial insurance law, Title 51 RCW. ATC RECOGNIZES THAT THIS WAIVER WAS SPECIFICALLY ENTERED INTO PURSUANT TO THE PROVISIONS OF RCW 4.24.115 AND WAS THE SUBJECT OF MUTUAL NEGOTIATION. The terms and conditions of this Article 15, and any other indemnities or releases provided in this Agreement, shall be applicable during the term of the Agreement and shall survive termination of this Agreement with respect to acts or events occurring prior thereto. ARTICLE 16. INSURANCE. a. ATC shall at all times that ATC Facilities are located on the Property or ATC, its employees, contractors, or agents perform work on the Property, at its sole cost and expense, keep in full force and effect the following insurance: (i) Commercial General Liability insurance insuring ATC against any liability arising by reason of this Agreement and/or arising out of the use or occupancy of the Property and all areas appurtenant thereto. Such insurance shall be in the amount of at least $2,000,000 per occurrence, $2,000,000 personal and advertising injury; $4,000,000 general aggregate, and $4,000,000 products and completed operations aggregate, and shall include, but not be limited to, bodily injury, property damage - broad form, and personal injury, for the hazards of Premises/Operation, broad form contractual, independent contractors, blanket contractual coverage, including coverage for written contracts and specific coverage for the indemnity provisions set forth in this Agreement, and completed operations and products liability coverage; provided that, there shall not be an exclusion for liability not contracted for. ATC will maintain Completed Operations coverage for a minimum of two years after the construction is completed. (ii) Workers' Compensation and Employer's Liability insurance as required by state law. (iii) Automobile Liability. ATC must carry Automobile Liability coverage. Coverage shall afford total liability limits for Bodily Injury Liability and Property Damage Liability in the amount of $2,000,000 per accident. The liability limits may be afforded under the Commercial Policy, or in combination with an Umbrella or Excess Liability Policy provided coverage of ridges afforded by the Umbrella Excess Policy are no less than the underlying Commercial Auto Liability coverage. Coverage shall be provided for Bodily Injury and Property Damage for the ownership, use, maintenance or operation of all owned, non -owned and hired automobiles. LEASE AGREEMENT -16- January 14, 2011 The Commercial Automobile Policy shall include at least statutory personal injury protection, uninsured motorists and underinsured motorists coverages. (iv) ATC Property Insurance. ATC must keep in force during the term and any renewals of the Agreement a policy covering damages to its Facilities at the Lease Area. The amount of coverage shall be sufficient to replace the damaged Facilities, loss of use and comply with any ordinance or law requirements. (v) Builders All Risk Comprehensive Coverage. ATC shall require its general contractor to keep the Structure insured for Builders All Risk Comprehensive Coverage including earthquake, fire, and flood and to include amounts sufficient to prevent the City from becoming a co-insurer under the terms of the applicable policies but in any event in an amount not less than 100% of the then full "Replacement Cost," being the cost of replacing the Structure, and all fixtures, equipment, improvements and betterments thereto. b. All policies shall, as allowed by law, include the City as an additional insured, without limitation, and shall be written in a form and with a financially sound insurance company who may lawfully do business in the State of Washington with a financial strength rating at all times during coverage of no less than an "A" and in a financial size category of no less than "X"; in the latest edition of "Best's Rating Guide" published by A.M. Best Company or equivalent rating guide approved by the City. C. In the event that at any time during coverage, the insurer does not meet the foregoing standards, ATC shall give prompt notice to the City and shall seek coverage from an insurer that meets the foregoing standards. Prior to or at the time that ATC takes possession of the Lease Area or commences Work on the Property, whichever is earlier, ATC shall deliver to the City copies of policies or certificates evidencing the existence of the amounts and forms of coverage satisfactory to the City. d. ATC will request from its insurance provider that all policies maintained by ATC provide that they may not be terminated nor may coverage be reduced except after 30 days prior written notice to the City. ATC shall, to the extent reasonably available, within 30 days prior to the expiration of such policies, furnish the City with renewals or "binders" thereof. e. All Commercial General Liability and ATC property policies maintained by the ATC shall be written as primary policies, not contributing with and not supplemental to the coverage that the City may carry and shall include a waiver of subrogation. LEASE AGREEMENT -17- January 14, 2011 f. The City, its agent, and employees make no representation that the limits of liability specified to be carried by ATC are adequate to protect ATC. If ATC believes that any of such insurance coverage is inadequate, ATC will obtain such additional insurance coverage as the ATC deems adequate at ATC's sole expense. g. ATC acknowledges that City is not responsible for insuring against the loss of ATC's Facilities. ARTICLE 17. SUCCESSORS. All the covenants, agreements, terms, and conditions contained in this Agreement shall apply to and be binding upon the City and ATC and their respective heirs, executors, administrators, successors, and assigns. ARTICLE 18. LIENS AND INSOLVENCY. ATC shall not allow any mechanics', materialmen's, suppliers', or laborers' lien arising by reason of ATC's or subcontractor's Work to attach or exist against the Property. In the event of ATC's failure to fully remove any such liens within 30 days after its filing and/or recordation, the City shall have the right to pay all sums claimed by reason of said lien, and ATC shall promptly pay the City the amount of such payment, together with all other costs and expenses (including attorneys' fees) incurred by the City. The provisions of this section shall survive the termination of this Agreement. ARTICLE 19. HAZARDOUS SUBSTANCES. a. Prohibited Use. Except as provided herein, ATC shall not use, sell, manufacture, store, treat, generate, or dispose of, or otherwise allow the release of any Hazardous Substance, as defined below, in, on, or under the Property, or any adjacent property, or in any improvements placed on the Property. ATC represents and warrants to the City that ATC's intended use of the Property does not involve the use, production, disposal, release, sale, manufacture, treatment, or bringing on to the Property of any Hazardous Substance. Notwithstanding the foregoing, ATC is permitted to use and store Hazardous Substances that are commonly used in wireless communication facilities including, but not limited to, ordinary cleaning products, battery acid and petroleum based fuel products; all of which ATC shall use in compliance with Environmental Laws; provided that, ATC shall provide the City written notice of all Hazardous Substances that are stored, used or maintained on the Premises. Further, the City acknowledges that ATC may, pursuant to Article 3.e, be authorized to install, use, and operator a generator on the Premises to provide emergency power to the Facilities. In such event, ATC may store and use Hazardous Substances on the Premises that are necessary for the operation of the generator during such Emergency; LEASE AGREEMENT -18- January 14, 2011 provided that ATC first submits to and then implements a plan to the City that meets industry standards for the safe and lawful storage of such Hazardous Substances on the Premises. b. Condition of PropeM. The City makes no representations or warranties as to the prior use of the Property and ATC accepts the Property AS IS and WHERE IS, WITH ALL FAULTS. ATC has had an opportunity prior to the Effective Date of this Agreement to diligently investigate and examine to ATC's full satisfaction the physical condition of the Property, including, but not limited to: the zoning status; presence and location of existing utilities; operating history; compliance with Environmental Laws or other Laws and other requirements applicable to the Property; the presence of any Hazardous Substances or wetlands, asbestos, or other environmental conditions in, on, under, or in proximity to the Premises; the condition or existence of any of the above ground or underground structures or improvements, including tanks and transformers in, on or under the Premises; the condition of title to the Premises, and the leases, easements, orders, licenses, or other agreements, affecting the Premises; City's disclosure (if any), and all other matters that in ATC's judgment affect ATC's use of the Property and ATC's willingness to enter into this Agreement (collectively referred to as the "Condition of the Premises"). ATC has not relied and will not rely on, and the City is not liable for or bound by, any express or implied warranties, guaranties, statements, representations, or information pertaining to the Property, its use, compliance with law or otherwise relating thereto made or furnished by the City or any agent representing the City, to whomever made or given, directly or indirectly, verbally, or in writing, except the representations and warranties of the City as specifically set forth in this Agreement. C. Indemnification. ATC assumes the risk that Hazardous Substances or other adverse matters may affect the Lease Area and Excavated Areas (defined below) that were not revealed by ATC inspection and indemnifies, holds harmless and hereby waives, releases and discharges forever the City and City's officials (elected or appointed), officers, employees and agents (collectively, "Indemnitees") from any and all present or future claims or demands, and any and all damages, losses, injuries, liabilities, causes of actions (including, without limitation, causes of action in tort) costs and expenses (including, without limitation fines, penalties and judgments, and attorneys' fees) of any and every kind or character, known or unknown, which ATC might have asserted or alleged against Indemnitees arising from or in any way related to the Condition of the Premises or alleged presence, use, storage, generation, manufacture, transport, release, leak, spill, disposal or other handling of any Hazardous Substances in, on or under the Premises ("ATC Losses"). ATC Losses shall include without limitation: (a) the cost of any investigation, removal, or Remedial Action (defined below) that is required by any Environmental Law, that is required by judicial order or by order of or agreement with any governmental authority; (b) losses for injury or death of any person caused by the Condition of the Premises; and (c) losses arising under any Environmental Law LEASE AGREEMENT -19- January 14, 2011 enacted after the date hereof. Except as may be limited below, ATC Losses specifically include losses sustained by ATC as a result of any obligation of ATC to remove, close, Remediate, reimburse or take other actions requested or required by any governmental agency concerning any Hazardous Substances on the Premises. Notwithstanding the above, ATC Losses waived, released, and discharged hereunder by ATC shall not include losses as a result of releases or contamination caused by the acts of the City or its agents, employees, contractors or subcontractors after the date hereof. d. Discovery Within Premises. In the event that the activities of ATC upon the Premises result in the discovery of the presence of Hazardous Substances ("Discovered Matters") in, on or upon the areas excavated or otherwise opened or exposed by ATC within the Premises (the "Excavated Areas"), ATC shall immediately notify the City and take whatever other reporting action is required by applicable Environmental Law as it relates to the Discovered Matters in the Excavated Areas. In the event that, as a result of such discovery, an agency with jurisdiction to address Hazardous Substances (defined below) on the Premises ("Environmental Authority") orders, obtains a judgment or court order requiring, or otherwise exercises its authority to require Remedial Actions to be taken by the City or ATC, or ATC decides to undertake Remedial Actions independently or enter into a consent order or consent decree with an Environmental Authority, then in such event, ATC agrees to indemnify, defend, and hold the Indemnitees harmless from and against the cost of all Remedial Actions which are required by the Environmental Authority within the Excavated Areas under the applicable Environmental Laws with respect to the Discovered Matters; provided, however, the City, subject to the provisions of Article 19(e) below, shall be solely responsible for all necessary Remedial Actions which are required by the Environmental Authority within other portions of the Premises (outside the Excavated Areas) under the applicable Environmental Laws with respect to the Discovered Matters. e. Release by ATC. In the event ATC's activity on the Premises within the Excavated Areas results in a release (as determined under applicable Environmental Laws) of Hazardous Substances which were, before such activities, confined to areas within the Excavated Areas, but which after such activities by ATC are released beyond the Excavated Areas, and if the release is caused in whole or in part by ATC, then ATC shall indemnify, defend and hold the City harmless from the costs of all necessary Remedial Actions which are required under the applicable Environmental Laws, to the extent of ATC's share of the liability for the release. ATC's liability for the release may, inter alia, be determined by ATC's admission of the same, or as determined by a final non -appealable decision by a court of competent jurisdiction, or as provided in a final non -appealable administrative order issued by the Environmental Authority, or by a consent decree entered by ATC and the Environmental Authority. LEASE AGREEMENT -20- January 14, 2011 ARTICLE 20. COSTS AND ATTORNEYS' FEES. If, by reason of any default or breach hereunder by the City or by ATC, it becomes necessary to institute suit, the prevailing Party in such suit shall be entitled to recover, as part of any judgment, such amount as the court shall determine reasonable as attorneys' fees for the prevailing Party in such suit, together with taxable costs. ARTICLE 21. NONWAIVER OF BREACH. The failure of a Parry to this Agreement to insist upon strict performance of any of the covenants and agreements of this Agreement, or to exercise any option herein conferred in any one or more instances, shall not be construed to be a waiver or relinquishment of any such option, or any other covenants or agreements, but the same shall be and remain in full force and effect. ARTICLE 22. HOLDOVER. If ATC shall hold over after the expiration of the term of this Agreement, such continued possession shall be strictly at the sufferance of the City and may be terminated by the City within the City`s sole discretion upon not less than ten days' written notice to ATC and by ATC upon not less than ten days' written notice to the City. During each month, or part thereof, of such continued possession, ATC agrees to pay to the City as rent an amount equal to two twelfths of the annual Lease Fee payable in the last year of the Agreement term before the holdover tenancy commenced, unless a different rate is agreed upon, and to be bound by all of the terms, covenants, and conditions as herein specified, so far as applicable. ARTICLE 23. NOTICES. All notices under this Agreement shall be in writing and delivered in person or sent by registered or certified mail, postage prepaid, to the City and to ATC at the notice addresses, or such other addresses as may from time -to -time be designated by any such Parry in writing. Notices mailed as aforesaid shall be deemed given on the date of such. City: City of Medina Attn: City Manager (Donna Hanson) 501 Evergreen Point Road Medina, WA 98039 LEASE AGREEMENT -21- January 14, 2011 ATC: ATC Outdoor DAS, LLC 10 Presidential Way Woburn, MA 01810 Attn: Land Management American Tower Corporation 116 Huntington Avenue Boston, MA 02116 Attn: General Counsel ARTICLE 24. GENERAL. a. Headings. Titles to sections of this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part hereof. b. Entire A erg ement. This Agreement contains all covenants and agreements between the City and ATC relating in any manner to the leasing, use, and occupancy of the Property and other matters set forth in this Agreement. No prior agreements or understanding pertaining to the same shall be valid or of any force or effect and the covenants and agreement of this Agreement shall not be altered, modified, or added to except in writing signed by the City and ATC. All exhibits herein referred to are and shall be incorporated by reference as though fully set forth herein. C. Severability. Any provision of this Agreement which shall prove to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision hereof and the remaining provisions hereof shall nevertheless remain in full force and effect. d. ' No Warranty of Quiet Enjoyment. Unless due to the negligence or willful misconduct of the City, its employees, agents, or contractors, the City shall not be liable to ATC, if for any reason whatsoever, ATC's use or occupation of the Premises, or the exercise of the rights granted hereunder, shall be hindered, disturbed, or terminated. e. Specific Performance: No Consequential Damages. In the event of a breach or default, or threatened breach or default, by the City or ATC (the "Defaulting Parry") under this Agreement, the other Party (the "Non -Defaulting Party") shall have the right, in addition to all other rights under law or in equity, to obtain an injunction and enforce specific performance against the Defaulting Parry. Neither Party shall claim or be awarded any incidental, punitive, or consequential damages by reason of the default of or breach by the other. f. Time. Time is of the essence under this Agreement. LEASE AGREEMENT -22- January 14, 2011 g. Entire Understanding. The Parties hereby agree that the City has not made any representations, statements, warranties, or agreements to ATC or others with respect to any condition or thing other than as specifically set forth herein. This Agreement embodies the entire understanding of the Parties hereto, and there are no further or other agreements or understandings, written or oral, in effect between the Parties, relating to the subject matter hereof. This Agreement may be amended or modified only by an instrument signed by both the City and ATC. h. Recitals. The Parties agree that the recitals are true and accurate and are hereby incorporated as though fully set forth herein. i. Condemnation. If all of the Property is taken for any public or quasi -public use under government law, ordinance, or regulation, or by right of eminent domain or private purchase in lieu thereof (collectively, "Taking"), this Agreement shall terminate when the physical Taking of the Premises occurs. If any part of the Premises is subject to a Taking, this Agreement shall continue in full force and effect without abatement of any of ATC's obligations hereunder. The City shall receive the entire award for any Taking of the Property; provided that ATC may pursue a separate award for ATC's leasehold interest so long as such pursuit or award thereto does not diminish the award to the City. j. Sims. No advertising shall be permitted on the Property, except as required by law or regulation. ATC may post its name, address, and an emergency telephone number on a painted sign; provided, the design, size, and location is approved in writing and in advance by the City. In addition, ATC may post any other signage required by law. k. No Joint Venture. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership, joint venture, or principal -agent relationship or other arrangement between the City and ATC. Neither Party is authorized to, nor shall either Parry act toward third Persons or the public in any manner which would indicate any such relationship with the other. The Parties intend that the rights, obligations, and covenants in this Agreement and the collateral instruments shall be exclusively enforceable by the City and ATC, their successors, and assigns. No term or provision of this Agreement is intended to be, or shall be, for the benefit of any person not a party hereto, and no such person shall have any right or cause of action hereunder, except as may be otherwise provided herein. 1. Memorandum. Upon request by either Parry, the Parties agree to promptly execute and deliver a recordable Memorandum of this Agreement in a form acceptable to both Parties which may be recorded by the Party requesting the Memorandum of Agreement. LEASE AGREEMENT -23- January 14, 2011 ARTICLE 25. INTERPRETATION/ CHOICE OF LAWNENUE. The Parties hereto specifically acknowledge and agree that the terms of this Agreement have been mutually negotiated and the Parties hereby specifically waive the rule or principle of contract construction which provides that any ambiguity in any term or provision of a contract will be interpreted or resolved against the Party which drafted such term or provision. This Agreement shall be governed and construed in accordance with the laws of the State of Washington. If any dispute arises between the Parties under any of the provisions of this Agreement, the venue for resolution of that dispute shall be available only in King County, Washington. IN WITNESS WHEREOF the Parties hereto have executed this document as of the day and year first above written. CITY: l Donna Hanson, City Manager Ap�pro� as to form: 1 J 1 Bruce Disend Attorney for City LEASE AGREEMENT -24- January 14, 2011 ACCEPTANCE OF AGREEMENT I, ►/� am the5ei17;0V l�C �/ S of b , and am the authorized represent .ivvee o accept h above -referenced Lease and License Agreement on behalf of / L , , LG� I certify th this Lease and License Agreement, and all terms and conditions thereof, are accepted by t✓ j:f a C , without qualification or reservation. IL DATED this day of 20- ATC O "SoorS, C s �f By Its STATE OF Mir -(am-. Co-vv 4'i c ) ss. County of W cal• - _) I certify that I know or have satisfactory evidence that Ovr- signed this instrument, on oath stated that (�he he/they) was were) authorized to execute the instrument and acknowledged it as the of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DILL W HOUSE NOTARY PUBLIC Wake county North Carolina � �i F.xpime Jan. 1, got! LEASE AGREEMENT January 14, 2011 -25- Dated: t'�or Signature of Notary Public:Q,)—L' Notary (print narnQ Residing at:[�c i My appointment expires: EXHIBIT A Legal Description of Property That portion of the north half of the southeast quarter of the southeast quarter of Section 25, Township 25 north, Range 4 east, W.M., in King County, Washington, described as follows: Beginning at the intersection of the westerly line of said subdivision with the southerly line of lot 1, block 1, of said Caseley's Plat of Medina, produced westerly and running thence easterly along said produced line, and along the southerly line of lots 1 to 9 inclusive, said block 1, to the southeast corner of said lot 9; hence southerly along the easterly line of said lot 9 and said easterly line produced 135.54 feet to the southwest corner of Tract A in said block 1; thence easterly along the southerly line of said Tract A, 316.35 feet to the westerly margin of 82nd Avenue N.E., as platted in said Caseley's Plat of Medina; thence southerly along said westerly line to the southerly line of the north 9/1Oth of said north half of the southeast quarter of the southeast quarter (said southerly line being the southerly line of vacated block 2 of said Caseley's Plat of Medina); thence westerly along the southerly line of the north 9/1 Oth of said north half of the southeast quarter of the southeast quarter to the westerly line of the southeast quarter of the southeast quarter of said Section 25; thence northerly along said westerly line to the point of beginning. EXHIBIT B Site Plan Depicting Structure and Layout Plan for Lease Area (5) TELCO PANELS; (2) INSTALLED (3) FUTURE RISERS (BELOW PANEL) ATC POWER PANEL AT&T POWER PANEL F FUTURE PANEL FUTURE PANEL FUTURE PANEL = LLl W E ow FIBER DISTRIBUTION BOARD / FLOOR LOAD PLAQUE; FLOOR RATED FOR 185 PSF MAX / FIRE EXTINGUISHER ' EXIT SIGN & LIGHTING SHARED TECH ACCESS DOOR - 6' CHANNEL ATC LEAVE UNDER POWER FUTURE FUTURE 24x24 VACANT CABINET TO 24x24 24x24 700 LBS DISTRIBUTE LOAD TENANT 2 TENANT 3 ATC -Af T&T1 FUTURE FUTURE 2424 POWER 2424 24x24 700 LBS 24x24 TENANT 2 TENANT 3 ATC FUTURE FUTURE 24x24 LEAVE 2424 24x24 700 LBS VACANT TENANT 2 TENANT 3 ATC AT&T /^ BBU FUTURE FUTURE 2424 BBU CONTAINMENT 24x24 24x24 700 LBS 2424 TRAY TENANT 2 TENANT 3 ATC AT&T FUTURE FUTURE 24x24 BBU 2424 2424 700 LBS 2424 TENANT 2 TENANT 3 ATC AT&T FUTURE FUTURE 2424 BBU 2424 2424 700 LBS 2424 TENANT 2 TENANT 3 ATC AT&T FUTURE FUTURE 2424 UMTS 2424 2424 700 LBS 2424 TENANT 2 TENANT 3 ATC AT&T FUTURE FUTURE 24x24 GSM 24x24 24x24 700 LBS 24x24 TENANT 2 TENANT 3 VCT FLOOR DC XFMR 2448 (IF REQ'D) I BATTERIES ARE SEALED MAT GLASS. COMBINED BATTERY BACKUP UNIT (BBU) CONTAINS LESS THAN 50 GALLONS OF ELECTROUGHT FUTURE FUTURE 2424 2424 ATC ACCESS ONLY — DBL STEEL DOOR W/ SAFETY CHAIN FOR EQUIPMENT DELIVERY FROM BELOW LANDING FUTURE 2424 TENANT 4 FUTURE 24x24 TENANT 4 FUTURE 2424 TENANT 4 FUTURE 2424 TENANT 4 FUTURE 2424 TENANT 4 FUTURE 2424 TENANT 4 FUTURE 24x24 TENANT 4 FUTURE 24x24 TENANT 4 ADDENDUM I TO EXHIBIT B Record Drawings and Final Site Plan (To be inserted EXHIBIT C Depiction of License Area z vg� g�� A y�yp N Cm O m C)mm c) . z /l ,A � Oa EXHIBIT C LICENSE AREA T l l I N i N m I� x0 n D m � (A rmr7 Z mom � m C) m a oz V D --1 D � f] n -y N m IA it I ii j n+ill FMN x Q