LEASE AGREEMENT

FOR

TELECO CATIONS

WITH

NEXTEL CO CATIONS OF MID ATLANTIC INC

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Woodwards Road School Site

Emory Grove Road

Gaithersburg MD 20877
 LEASE AGREEMENT FOR TELECOMMUNICATIONS

INDEX

1 NON EXqLUSIVITY CO LOCATION

2 LEASED FREMISES

3 TERM

4 RENTAL

5 SECURITY DEPOSIT SURETY BOND

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6 RENEWAL
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7 CANCEllATION
8 EASEME TS SERVING PREMISES

9 PURPOS

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10 USE OF PREMISES
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11 COMPLIA
NCE WITH GOVERNMENTAL LAWS

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12 OWNERSHIP SUBORDINATION AND NON DISTIJRBANCE
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13 RESTORATION OF THE PREMISES

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14 TELECO CATIONSPOUCY
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15 DEFAUL
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16 UCENSE AND PERMITS

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17 CONSTRTJcTION BY TENANT
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18 INTERFERENCE

19 ICATION
INDE
20 INSURAN E REQUIREMENTS

21 DUS
HAZARD MATERIALS
22 ASSIGNMENT

23 INSPECTIONS

24 QUIET ENJOYMENT

25 DAMAGE AND DESTRUCTION

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26 CONDEMNATION
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27 I
BINDING EFFECT

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28 RECORD TION

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29 NOTICESi
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30 WAIVER i
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31 ENTIRE AGREEMENT

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32 GOVERNANCE
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33 CONFLICiTS
 School Site Woodwards Road School Site

LEAsE AGRE TEL

TIllS
Board of Education
LEAsJ made this
df Montgomery County governing b lIy
yNOFOR day of A 2004
of MONTGOMERY COUNTY
by and between the

PUBLIC SCHOOLS hereinafter the Landlord and Nextel Communications of the Mid
Atlantic Inc
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a Delaware corporation b
d a Nextel Communications do business in
qualified to
Maryland hereinafter the Tenant

Landlord hereby rents to Tenant and

Tenant hereby rents from Landlord the leased
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premises herein desclibed upon the following terms and conditions

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1 NON EXCdJSIVITY CO LOCATION Landlord leases to Tenant a
portion of the
Parcel h rei portion after described
namely a of which the fenced enclosure
assigned
to Tenant is leased on an exclusive basis for the express purpose of Tenant s placing
certain appro edtelecoitimunications facilities the Communications Facility on the
Premises as tlefiIled below to promote the public purposes of the Telecommunications
Actof 1996 ITenantagrees and und rstands that it shall enjoy a non exclusive right to
use that portibnofthe Parcelon which is constructed a tower monopole or other
antenna relatbd structure and shall permit
by any tower co location other tenants on

movopoJe other structure that it may construct for its telecommunication

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purposes
Tenant shaH8eal ingootl faith with any other tenants who may be granted co location
rights on the ln1unications
on Facility
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2 LEASED PRiEMIS
ES Theleased premises Premises consist of approximately 300
sguare Jeet of that cettain ttact of land I ying in Montgomery County Maryland
cbntainlng p roX ihiiiteIY 2 S acres and conveyed to the Landlord P ursuant to
a a deed
dated Febru 20 and recorded in the Land Records of Montgomery
J9SS County
Maryland in iber p7p2 Folio 266 which property is known the Woodwards Road
as
School Site
Jfove Site
riEmdi the Site The Parcel is further identified as Parcel
N72lon Tax
attached hereto
IMapFp5 3
Exhlblt as
The Premises
Aand made a
are more

hereof
particularly
As a
sh wn on a site
condItIOn to the Landlord
drawing
part s
consent to this Lea
Tenant shall submit drawings depicting the Premises and the
required Eas 1pent in P ragraph 8 and obtain permission and approval from Comcast
Cablevislon
p
Potp aci LL C which has a lease for the major portion of the
Woodwardsfoad SchddlSite
3 TERM of this Lease shall be five 5 years with a five year renewal option at

provisions
two addlt10naI flve
Thelterm I aragraph
thedisnantcretiopfthe

Yflar
subjectto
15 of this Lease
the cancellation Paragraph 7 and the default
Tenant may be granted
terms If the CommunIcatIOns
permission
FaCIlity mcludmg the Spnnt
to r new for

Monopole erected by APC Realty Equipment Company L LC

rPrintNIOl OPOle
contin
les to e usedfor telecommunications purposes at that time in the future The
initial term s all cOl1J1TI ence on the earlier to occur of the commencement of construction
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Qj the Communications Facility or the sixtieth 60 day following the above date of this

Lease unless the parties a gree in writing to a different commencement date

Commencement Date

covenants and agrees to cause to be paid as annual rent

4 RENTAL renant hereby payor
to Landlord the total sUm 0 for the initial

l2 month t6rm by monthly payments lar v Annual

t
rent shall b adjusted each anniversary of the Lease year by
at

ovei the previous year s rent or an amount equal to the increase in the consumer

price indexifor the Baltimore Washington Region whichever is greater Rent shall be
made payatHe to the Montgomery County Public Schools and delivered to the Office of

the Chief Operating Officer 850 Hungerford Drive Rockville Maryland 208 0 or such
other place as the Landlord may from time to time so designate in writing at least thirty
30 days i advance of a rental payment date

5 SECURITY DEPOSIT SURETY BOND Upon execution of this Lease Tenant shall

depos Wit theLandlord cat the option of Tenant a cash security dep sit or a surety
t

bond 1n a fOrmllnd from a surety company acceptable to the Landlord TIthe amount of
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as security for thefaithful

performance and
terrhs and conditions of this Lease It is agreed that if Tenant defaults

observancelofthe
with respet to any terms and conditions of this Lease including but not limited to the

payment of rent or the removal of its equipment at the conclusion of this Lease Landlord
may use a8ply etain pr draw against the whole or any part of said securit deposit or
surety bond reqllITedfor the payment of any rent or anyother sum as to which the Tenant
is in defaul dr for any sum which the Landlord may expend or may be required to

expend by rlelisoh of the Tenant s defaults of any of the terms conditions and covenants
ofthis Lea e If Tehant shall fully and faithfully comply with all the terms covenants
and conditions of this the security deposit shall be returned to Tenant or the surety
Leas
bond shall be extinguished 110 later than sixty 60 days after the end of this Lease

provided
Tinant
has delivered the Premises in the mannerrequired herein

6 RENEW AIl At the option of the Tenant and

so long as Tenant is not in default under any

of the termS
hereof this Lease may be renewed if at least one hundred eighty 180 days

prior toex irati on of the then current term of this Lease Tenant provides written notice

of its intenlto rynew the Lease for another five year term At le st ninety 90 days prior
to the expir tion of the then current term Landlord shall inform Tenant in writing of the
annual rentlforthe new term which shall not excee ercent overthe previous
year s annuW rental rate
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7 TION Landlord may cancel this Lease for cause if Tenant fails
CANCELLl to comply
with the terlns and conditions of this Lease Tenant shall have thirty 30 days after
written noti e to cure
any non conforming condition to the reasonable satisfaction of the
Landlord f Landlord determines that Tenant s actions pose a risk in violation of any
federal or slate law regulation or ordinance applicable to public health safety or welfare
and issues ritten notice or if Tenant s actions result in the issuance of a
legal Notice of
Violation of any public health safety or welfare law regulation or ordinance and Tenant
is unable to cure the conditlOns specified in the Landlord s notice orthe legal Notice of

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 within the time therein then Landlord may immediately terminate
Yiolation prescribed
this Lease by written notice to Tenant

8 EASEMERTS SERVING PREMISES

a The Board of Education must giveformal approval to the easements serving the
Premises Subject to its prior formal approval and after a utility location analysis

by a duly qualified utility location service the Landlord hereby grants to Tenant
the easements described below in this Paragraph 8 and Subparagraphs 1 through iv

su9h easements collectively called the Appurtenant Eas ments as easements

appurtenant to the leasehold granted to Tenant in thisLease The Appurtenant
Easbments may not be otherwise transferred in whole in part
assigned or or

ately from the leasehold granted under this Lease and any such attempted
sep
assignment or transfer shall be void

1 Landlord grants Tenant a nonexclusive temporary construction easement

over on and through a portion of the schoolSite as shown on Exhibit B

for Gonstructidn and installation of Communications

thl upon the FaCility
Premises Such temporary construction easement shall terminate upon the
earlier of 1 completion of Tenant s construction described in Paragraph
10 or ii the first anniversary of the commencement of this Lease

11 Tenant shall be permitted the non exclusive use of a

right of way ten feet

10 in width the centerline of which is shown on Exhibit B hereof or

such right of way of similar dimensions as Landlord may designate
other

during the term of this Lease to construct operate maintain repair and

remOve Tenant s underground communication cables from the Premises

across and through that portion of the Site deSCribed on Exhibit B as the
Conduits for Radio Cables Tenant shall
Proposed Underground post
and maintain at least four 4 signs indicating Underground Cables on

the fence enclosing its equiPment and on he Tower outlining the

extremities of the path of the underground cables

111 At such time is necessary Landlord shall grant to the local utility and
as

telephone companies a non exclusive easement and right of way of ten

feet 10 in width for the purpose of constructing installing maintaining
operating providing repairing and removing underground
communication and electric power lines and systems along and or under
those of the Site designated and the righli of way of Tenant
portions
lproided for during the term of this Lease for purposes of installation and
of telephone and electric service to the Premises Any utility
provision
easemehtrequired shall be submitted to the Board of Education for formal
services Tenant shall the exclusive
approval For utility use same non

utility easements granted by the Landlord to Verizon Telephone Company

and Potomac Electric Power Company to serve the needs of APC Realty

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 Equipment L LC

iv Landlord hereby grants Tenant a non exclusive right to use the existing
driveway for ingress to and egress from the Premises by Tenant for
vehicular traffic for constructing installing maintaining operating

repairing and removing equipment over that portion of the Site designated
on Exhibit B hereof as Proposed 20 Ingress Egress Easement or such
other right of way of similar width as may be designated by Landlord to

provide such access to the Premises and the Communications Facility

during the term of this Lease

b Landlord shall have the right to relocate any of the Appurtenant Easements upon
occurs after the
at l ast ninety 90 days prior written notice If such relocation
instfl1lation of utilities or facilities therein such relocation shall be at Landlord s

exppnse and shall be conducted in such a manner so as to minimize any disruption

to 1 enant s operations under this Lease

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Wi1t the exception of the temporary construction easement
provided for which
may expire sooner as
provided in such
subparagraph and any utility easements to
third party utility or power companies which shall expire in accordance with their
tents the term of all Appurtenant Easements shall automatically expire thirty
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30 days after expiration or termination of this Lease without the need for further
act
pf any party Notwithstanding the foregoing if reque ted by Landlord Tenant
shall execute and deliver to Landlord in recordable form such documents as
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Lan dlord may request to evidence of record the terminati m of all Appurtenant
Easements as just provided

9 PURPOSE The Premises shall be used to locate towers equipment buildings and
related facilities including the Communications Facility for telecommunications use

No grading cutting of trees removal of sod or

topsoil and no installation of additional
permanent pr temporary including fencing shall be done without the prior
structures

written and express consent of Landlord The Premises shall be used only for purposes

compatiblei with the zoning of the Parcel Tenant shall return the Premises to the original
condition llOrmal wear and tear and damage by casualty not caused by Tenant excluded

prior to the expiration of the term of this Lease or any extensions or renewals thereof
Tenant agr es to control all noxious weeds in accordance with the guidelines of the

Maryland lDepartment of Agriculture Tenant also agrees to periodically mow the

Premises abd to remove brush and debris as necessary

10 USE OF PREMISES
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a TeDiant shall the Premises for the purpose of installing removing replacing
use

modifying maintaining and operating at its expense the Communications

Facility which shall be deemed to include without limitation antennae
equipment electronic equipment cable wiring air conditioned equipment
shejter s backup power sources including generators and fuel storage tanks in
acc6rdance with Paragraph 21 and applicable laws related fixtures and an

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 nt Easements for the
antenna structure and shaIIlse theAppurtel1 solely
applicable purposes described in P afagfaph 9 Landlord makes no
representation
or whether such use is
permitted by any laws or regulations applicable to
warranty
the Premises and Tenant is solely responsible for determining whether such use is

permitted and for securing all necessary licenses permits and approvals therefore
froip the appropriate governmental agencies

b Notwithstanding any other provision of this Lease the Tenant acknowledges the
absblute primacy of the Landlord s use of the Site to serve the needs of the public
schbol system and that Tenant s rights under this Lease are subject and
subprdinate to Landlord s use and operation of the Site Accordingly in
exercising its rights under this Lease Tenant shall use its best efforts to avoid any
advlerse construction operation or other impacts on the Site and Landlord s use
an
operation thereof arising from Tenant s activities conducted on or off of the
Sitd Prior to any entry upon the Premises Tenant shall provide reasonable
ad notice to Landlord of such entry and of any work or activities to be
ance

coniducted on the Premises Such entry work and other activities shall occur only
at s1ch times and shall occur in such
may be required by Landlord to
manner as

aV9idany adverse impacts Tenant may enter the Premises without prior notice to
Landlord in case of emergencies adversely impacting Tenant s provision of
corlununication services or threatening life and safety provided Tenant notifies
Larldlord of same soon as practicable
as

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Suoject to the conditions set forth in Paragraph 10 b Tenant shall have the right
at y time following the full execution of this Lease to enter upon the Parcel for the
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purPose of making appropriate engineering and boundary surveys inspections soil

test borings and other reasonably necessary tests

d If at any time during the term of this Lease Landlord reasonably determines after

conlsultation with Tenant that the Communications Facility and related facilities
hav not been and or can not be in
operated a manner that does not materially and
the Landlord and of the Site to
advfrsely impact
of MCPS then Landlord shall
s use

provide
operation serve

Tenant with detailed written information

the needs

spebfying the nature of the condition that Landlord has determined to have
res lted in such material and adverse
impact upon the Landlord s use and
opetation If Tenant is unable to
remedy such condition to the reasonable
satiSfaction of Landlord within thirty 30 days following Landlord s provision of
the foregoing information then Landlord may terminate this Lease by giving
Terlant thirty 30 days prior written notice of same
e Laddlord reserves the right to add improvements to or redevelop the Site
inqluding the Premises in any manner including additional communications
facicrities necessary for Landlord s or Montgomery County s communications

nee s and in connection therewith to relocate at Landlord s sole expense the

1munications
COI Facility and the Premises Within fifteen 15 days following
approval of Landlord s proposals to add any such improvements or redevelop the
Sit Landlord shall provide written notice thereof to Tenant Landlord shall
ma e reasonable good faith efforts
including consultation with Tenant during the
planning stages therefor to cause any such improvements or redevelopment to be

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 performed in a way that does l1 otr guire relocation of the Communications
Facility and the Premises or undut inierlerence to Tenant s use and operation of
the Coriununications Facility Landlord s reasonable good faith efforts and its
exercise of discretion shall be subject to Landlord s statutory responsibility to
make school decisions in the best interests of the students in the Montgomery
Co nty Public Schools However if such interference cannot reasonably be
rectified through the cooperation of the parties and if no viable relocation site can
be Inutually agr ed to by the parties then either party may terminate this Lease by

giving the other party thirty

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30 days prior written notice thereof In the event
tha Tenant agrees in its sole discretion to accept relocation of the

Cojnmunications Facility to another portion of the Site the New Premises the
conditions shall
folljowing apply

1 the New Premises must in Tenant s sole and reasonable judgment be

substantially equivalent in area and appropriateness for Tenant s purposes

with no degradation of signal transmission andor reception quality

Il Tenant must be able through the exercise of commercially reasonable

efforts and the cooperation of Landlord to obtain any governmental
approvals for the relocation to and operation of the Communications
Facility from the New Premises

lll Subject to the requirements of Paragraphs 8 a 10 b 17 d and 17 e

Landlord and Tenant will cooperate in

good faith to schedule and
effectuate such relocation mutually acceptable time designed to
at a

minimize any disruption to both parties operations taking into account

the nature of the equipment to be relocated the need to modify or obtain

governmental approvals if any the need to schedule any new engineering

or construction work and the needs and
requirements of the Montgomery
County Public Schools and its students

iv Upon relocation of all or a

portion of the Communications Facility to the

New Premises all references in this Lease to the Premises shall be

deemed to refer to the New Premises and Tenant shall at its expense

prepare drawings accurately depicting the New Premises which shall

replace the pertinent portions of Exhibit A and
To the extent applicable Exhibit B shall be revised to
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incorporate any new
non exclusive rightsof way necessitated by the foregoing relocation

Notwithstanding anything to the contrary contained herein if Tenant in its

sole discretion elects not to agree to the relocation of the Communications

Facility Tenant may terminate this Lease upon thirty 30 days writlen
notice to Landlord In the event that Tenant such notice of
provides
termination Landlord shall have the right in its sole and absolute

discretion to withdraw its plans to relocate the Communications

Facility and in such event Tenant s election to terminate shall be deemed

null and void

f Landlord may at its expense but without any charge from or cost to Tenant use a

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 portion of the Tower for mounting and operating additional communications
equipment of Landlord or other Montgomery County or other govemmental
agencies provided that a structural analysis is performed at Landlord s sole cost
and expense to ensure that the Tower will support the additional
equipment
Such aiiditional equipment shall be mounted as between Landlord
agreed upon
and Tdnant and shall not interfere with the operation of Tenant s equipment or

that ofother tenants collocated on the Tower

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11 COMPLIANCE WITH GOVERNMENTAL LAWS AND REQUIREMENTS Tenant

agrees to comPly with all applicable govemmentallaws and regulations The

aclministrativeapproval fbrTenant s Communications Facility is expressed in the

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Resolution AI1provinga Special Exception issued by the Board of Appeals of the City of
Gaithersburg ated October 9 2003 which approval is attached hereto and incorporated
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herein as Exhiibit E

12 OWNERSHIB SUBORDINATION AND NON DISTURBANCE Landlord covenants

and warrants fuat Landlord is seized of fee simple title or of good and sufficient interest
to the Parcel ahd has full authority to enter into and execute this Lease Landlord further
covenants tha there are no liens j dgm nts
impediments to title On the Premises other
or

than those of rFcord At Landlord

thiS Lease shall be subordmate to any
optIOn s

mortgage or other instrument by which Landlord from time to time may encumber all or
part of the Pretmses
or
right of way provided however that every such mortgage andor
instrument sh ILrecognize the validity of this Lease in the event of a foreclosure of
Landlord s int rest and also Tenant s to remain in occupancy of the Premises so
right
long as Tenant 11 not in default of this Lease Tenant shall execute whatever instruments
may be required to evidence this subordination clause
solely to the extent that
reasonablt
such instrume ts contain language

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specifically acknowledging the continuing occupancy
rights of Tena tin the event of such foreclosure or other divestiture

13 RESTORATIcDN OF THE PREMISES At the end of the term whether

by passage of
time or the exdrcise of any party of any
of termination Tenant shall surrender the
right
Premises to ndlord in the condition specified in this
Paragraph Tenant shall be
entitled to dis antle and remove at Tenant s sole
expense the Communications Facility
its support s cture any antennae and all other alterations additions fixtures and

improvements made by Tenant to the Premises less and except any support structure and
any lights antnha equipment belonging either to the Landlord or
any third parties
Such dismantl and
shall be coordinated in advance with Landlord and shall
ng rep10val
be scheduled ahd condUcted
may be reasonably required by Landlord to avoid any
as

adverse impac on the use and operation of the Site After such
dismantling and removal
is completed
1epant
sfall restore the Premises to its condition before the improvements
were made exlCept for reasonable wear and tear
damage by casualty
not caused by
Tenant changdsby Larldlord and equipment owned by Landlord or any third parties that
Landlord requires to remain
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14 TELECOMMlVNrCATIONS POLICY Tenant covenants and agrees that at all times

during this Lea it shall
e comply with the Landlord s Policy on Telecommunication
Transmission acilities as amended from time to time and published on Landlord s
official websit located at mcps kI2 md us A copy of Current Board
Policy ECN is

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 attached hereto and incorporated herein as Exhibit F

happening of
15 DEFAULT Tenant shall be considered in default of this Lease upon the

any of the following

a A default of ten 10 days in payment of rent from the due date and Tenant s

failure to cute that default within thirty 30 days after written notice

b A breach of any term covenant or condition of this Lease other than payment of
30 after Tenant receipt of written
rent continuing for more than thirty days s

as may reasonably
notice specifying the failure or neglect or such longer period
be re uired tb correct such failure or neglect with exercise of due diligence then
Tenant s right of
at theoptioIl of Landlord and upon written notice to Tenant
posse sionshall thereupon
end and Landlord may pursue any legal and or

equitble remedies available to Landlord If Landlord files an action to enforce

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any eement contained in this Lease or for breach of any covenant or condition
b
a
and Uandlord prevails in such action Tenant shalLpay Landlord sreasonable

attordeys fees and court costs all fees to be fixed by the court

c The appointment of receiver or trustee of Tenantsproperty assignment for the

benefltof creditors of all or any of the property of Tenant subj ect to Section
commencement of any proceedings under any bankruptcy
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or
c
ihereinbelQw by
insplvency law
or

or
against Tenant subject to the understanding that if such
instituted Tenant no default will be deemed to
proc4dings voluntarily
are not by
unless such not stayed by appeal or otherwise
exist ereunder proceedings are

such institution
withi1 sixty 60 days following
by Tenant and its failure to the default within thirty
d In
thel event of defaultwritten cure

30 days following notice Landlord may option at its terminate this

Leaseland reenter the Premises and again

of
have possess
and
and enjoy the same as
termination for default
and of its former estate In the event the re entry
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the L ndlord may at its option relet the Premises or any part thereof for any use
whicH it may deem reasonable but the Landlord shall not be under any obligation
torel t the PrEimises for any purpose other than that specified in this Lease In the
termination for default under this Paragraph l5 d Tenant shall be liable
event lof
but not limited to net unpaid rent and
fQr alli direct losses and damages including
reasorlable attomeys fees as the Landlord may sustain as a resUlt of Tenant s
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default

so as to cause
e If Lan
plord shall fail neglect to keep and perform its obligations
or

of the Landlord and such failure

obligations neglect is not remedied
a
breafh s or

within thirty 30 days or such longer period may reasonably be required to

as

correc such failure or

neglect with exercise of due diligence after written notice

from Tenant specifying such failure or then Tenant may terminate this
neglect
Lease and any legal ancIlor equitable remedies available to Tenant
pUllsue
16 LICENSES AND PERMITS

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 Tenant shall make every effort with due speed and diligence to obtain at Tenant s
sole expense all of the certificates permits and other approvals that may be

requi ed by federal state or local authorities for Tenant s use of the Premises as
set forth in this LeaSe Tenant agrees to present evidence at allY time during the

term Qf this Lease or renewals of any extension thereof that any and all necessary
licen es and permits continue in effect Such evidence shall be presented within
ten
lP days of receipt of the Landlord s
request for such evidence

b In thel event any such

applications should be finally rejected or any certificate
permilt license orapprovalissued to Tenant is canceled expires or lapses or is
Hvise
othe withdrawn or terfuinated by governmental authority or soilboring tests
are f06nd to be unsatisfactOry so that Tenant will be unable to use the Premises

for thb purposes Set forth herein Tenant shall have l right to terminate this
th
Leas l ygiVing Landlord thirty 30 days prior notification of termination All
rendl paidprior to said termination date shall be retained by Landlord on a
pro
ratabl1sis Notwithstanding anything to the contrary contained herein if Tenant
doeS
rerh
rot
exercise its tight to terminate under this Paragraph 16 b Tenant shall
liable for all of its responsibilities under this Lease including the payment

of
ie
rent but shilll not have the right to conduct any operations hereunder until it

proVides docU ln ntation reasonably acceptable to Landlord demonstrating that all

neceskary certificates permits licenses and lor approvals have been issued or
reins ted as applicable under the particular circumstances

17 CONSTRUctTION BY TENANT The parties acknowledge that portions of Paragraph

17 may not apply to thi particular Lease especially if Tenant is co locating its
equipment o an
existirigpole

a Tenmlt shall obtain all necessary approvals including without limitation those
requiJed y
re
u Federal Aviation Administration F A and the Federal

FCC for constructIOn and operatIOn of the

oCnsrCmohrumsclOatnl
nsFacility After
Cormhunicati obtaining the necessary permits and approvals
theretbr and after obtaining Landlord s approval of its construction
plans Tenant
at its ole costarid expense shall perform or cause to be all of the performed
work
folloting
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Installing up to three 3 equipment cabinets with approximate dimensions
of high and wide x deep on a concrete with pad approximate
dimensions of wide and
x deep a
backup battery unit
II
Installing onthe Tower such types and numbers of antennae as
may be
I appropriate for Tenant s operations in accordance with the terms of this
Lease subject to Tenant s compliance with applicable governmental
regulations

iii 8 chain link fence

Installing an on each side of the Premises

IV
Subject to Landlord approval thereof as provided herein performing or
s

causing to be performed all other improvements and work associated with

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 the work described above that may lawfully be required by Montgomery

County or any other governmental body or official having jurisdiction as

part of or in connection with the work described above

b Tenant s agreement to perform or cause to be performed all of the work described

above all at Tenant s costahd expense shall be construed broadly to provide for

allcqsts and liabilities of such work whether or not such costs are anticipated and
withdut regard to Tenant s present estimates for the cost of same so that all of
such is fully and properly performed and paid for by Tenant and upon
vork
f
completion of same the Site as altered by such work is as fully functional and
suita1jle for continued use by Landlord as it was prior to the start of Tenant s
workl Accordingly the phrase all work shall include without limitation all of
the fdl10wing workactually performed or caused to be performed by Tenant at the
Site nd Tenant s promise to pay for such work shall include without limitation
alLo the costs and liabilities associated with the following all labor and
materials design work legal and professional fees of Tenant s consultants permit

drawings and materials construction costs construction equipment and materials

utili es extension or relocation provision of protective fencing and other safety
removal of construction related debri s from the Site
spres
ea maintenance
and workers
liab1ltty property compensatIOn msurance
prerruums bond fees

devejopment construction permits inspections and approvals re sodding of

and
all disturbed areas not covered with impervious surface replacement or relocation

oOaddscaping re striping of p ved areas for traffic control and parking

relOChtion replacement or provision of new safety and traffic directional signage
connection of new sidewalks drives parking areas and other facilities to
Landlord s existing facilities and repairs and restoration required as a result of
any amage to the ite caused in the prosecution of the work performed by or
caus d to be performed by Tenant under this Lease
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c Tena1t shall cause ppnstruction of the Communications Facility to be commenced

as soon acticable after receipt of all necessary permits and
asp1 approvals
and
year
t

t
pe completed within a reasonable time thereafter not to exceed one 1
receipt of necessary permits Once its work on the Communications
rom

Facility is initiated Tenant shaIi diligently and continuously prosecute such work
t0 nbl completion including obtaining all required inspections and approvals in
atJm IY manner m accordance wIth a schedule to be
agreed upon by Landlord and
Tenatt Such schedule shall limit construction activities to such days and times as
Landlord reasonably may require to avoid any material and adverse impacts on
the u e and operation of the Site Tenant shall keep Landlord fully
apprized of its
and of any events that might impact the construction schedule If
progrfss
Tenantfails to perform its work in accordance with the schedule approved by
Landlord including any Landlord approved revisions thereto and if such failure
threa ens the safe proper and timely operations or uses of the Site then Landlord
shall pave the right to take all measures as it may deem necessary to avoid or
abate any interference with such safe proper and timely operations or uses
Landlord shall endeavor in
good faith to give Tenant prior written notice before
com encing any such measures and to coordinate with Tenant in
detemlining the
meas res that may be necessary but Landlord reserves the unqualified right to

I
10
 take any and all measures that it may deem necessary to assure the safe proper
and timely conduct of other operations or uses of the Site Tenant shall pennit
Landlord s
designated inspectorfull escorted access to all of Tenant s
construction areas during normal business hours and shall provide such inspector

access to all construction plans drawings and other information reasonably

requested

d The Communications Facility shall be constructed

by Tenant in a good and
workmanlike manner and in accordance with the plans drawings and

specifications prepared and provided by Tenant for Landlord s prior review and
written approval which approval shall not be unreasonably withheld conditioned
or delayed Construction and installation of the Communications Facility by

Tena t shall be in compliance with all applicable rules and regulations including
with6ut limitation the written specifications and requirements of Landlord
previ usly made available to Tenant by Landlord and those of the Occupational
Safe y and Health Administration OSHA the FCC the FAA and regulations
of an applicable govemmentalagency town county state or federal including
but nbt limited to the applicable requirements of the local planning and zoning
and uilding electrical communications and safety codes of Montgomery
Cou ty Maryland Tenant at its sole cost and expense shall secure all necessary

penmts and approvals required to permit the construction and operation of the
nunications
COrn Facility Landlord agrees to cooperate reasonably with Tenant
in an necessary applications or submissions required to permit construction and

oper tion of Tenant s Communications Facility as described herein provided that

LancJ1Iord shall be reimbursed for all expenses incurred in providing such
cooppration within thirty 30 dlYs of incurring the expenses and provided
further that obtaining Tenant spermits and approvals shall not result in the

impdsition of any material restrictions or limitations or adverse impacts on the

Site r Landlord s u e operatioil improvement or redevelopment thereof All of
Tenaht s work and facilities shall be installed free of mechanics materialmen s
I

and qther liens and claims of any person Tenant agrees to defend with counsel

appnDved by Landlord and to indemnify

I
and save Landlord harmless from all
loss ost damage or expense including without limitation reasonable
attorneys
fees ioccasionedby or arising in connection with the work
contemplated by this
Leas and shall hond off or discharge any such liens or otherc1aims within thirty
30 ays after written notice from Landlord

Prior to any activities on the Site pursuant to this Lease Tenant shall
e commencing
provijdeLandlord with evidence satisfactory to Landlord that Tenant and its
contractors and agents who will be working on the Site are covered by insurance
as reC9uired by Paragraph 20 hereof

f If Lal1dlord third party to place its antennae on the Tower Landlord

permits a

shall unless otherwise

agreed between Tenant and such third party require such
third party to remit in addition to any rent to which Tenant is entitled to recei ve
from such third party pursuant to Paragraph 22 e to Tenant its pro rata share
based on the number of users or antennae which the Tower will support as

11
 and
jointly determined by Landlord and Tenant of the construction costs or

licensing fee and remit such sums to Tenant Notwithstanding the foregoing in
no event shall Landlord have any liability to Tenant
under this paragraPh and

Landlord s failure to cause such sums to be remitted to Tenant shall not constitute

a ddaulthereunder provided nothing in this Agreement and or in

however that

any greement party shaU be construed to

between Landlord and such third

restrict any legal and or equitable right or remedy of Tenant if sllch sums are not
remi ted to Tenant by such third party including without limitation Tenant s

right to terrhinate any agreement it has entered pursuant to which such third party
its antennae the Tower
is permitted to place on

g Tenant s antennae shall frequency range approved by the

operate only in the

fedetal agencies If Tenant wishes to use a frequency or frequencies other than

the proved frequency Tenant shall request Landlord s permission in writing
prio to receiving a frequency change from the FCC or other governmental agency
authbrized to establish frequencies Landlord may grant or withhold such
I
Without limiting the generality of
perIr ission in its sole but reasonable discretion
the foregoing it shall be reasonable for Landlord to a withhold consent if other

ante nae on the Site whether or not owned by Landlord are operating in the

range requested by Tenant b withhold consent if Landlord believf s that its

polidY requiring co location of transmitting antennae would not be served by
to expand its frequencies and or c condition its consent on
pernlitting Tenant
the payment of additional rent Nothing in this Lease shall be construed to limit

Lanqlord s right to grant other parties the right to cOnstruct operate or modify
Towhs equipment platforms or antennae on the Site including
I
Tower
the it
Tenant
being understood that such other parties would have no right to modify s

Tow r provided however that such construction operation or modification

does not interlere with the operation of Tenant s equipment platfonlls antennae
or thb Communications Facility

h Tenaht shall upon Landlord s request fence and buffer the Premises or any

portiIDn thereof If the Communications Facility is to be constructed near any

existing structure or structures on the Site Tenant shall a construct the
Combunications Facility so that it does not affect the structural integrity of the
existing structure or structures and b provide Landlord at its request with a

report prepared by an
independent third party professi onal engineer confirming
the st uctural integrity of the existing structure or structures following the
of the Communications Facility
construction
Tena t shall restore in compliance with the Federal Americans with Disabilities
Act ADA and any state or local law counterpart any of Landlord s facilities
physi ally altered by Tenant s work only if the altered facilities previously
complied with the ADA

Tenant shall not make further additions or improvements to the Communications

Faciliryor the Premises without first obtaining Landlord s written consent which

12
 consent shall not be withheld cortditioned or delayed unreasonably

i Tenant shall install any electrical radio electromagnetic or other types of

prote tors deemed required by the Landlord or its consultant s to protect the
Landlord s
property and equipment from interference damage or adverse impact
caus d by Tenant s use of the Premises

j Upon termination of the Lease Tenant shall remove its equipment and restore the
Premises to their former condition except for reasonable wear and tear and
dam ge by casualty not caused by Tenant

k As ltimg the Communications Facility and continue to

as
equipment serve as

collateral ofa third party financing entity Landlord waives any lien rights it may
have conceming Tenant s Communications Facility which is deemed Tenant s
personal property and not fixtures and as long as the Communications Facilitfand

equi ment contiT ue to serve as collateral of

third party financing entity Tenant a

has the
right to remove the same at any time without Landlord s consent mthe
event that the Communications Facility or any of its associated
equipment ceases to
be s ject to a
security interest Tenant shall Landlord with written notice
provide
thereciJf within thirty 30 days thereafter

I Landlord wledges
ackno that Tenant has entered into a financing arrangement
inclutling promissory notes and financial and security agreements for the

finanbrig ofthe Communications Facility the Collateral with a third party

finan ing entity and may in the future enter into additional financing

arrangements with other financing entities In connection therewith Landlord I

consents to the installation of the Collateral ii
disclaims any interest in the
JtColeral l tures
asfi or otherwise and iii agrees that the Collateral shall be
exe tfrome ecution foreclosure sale levy attachment or distress for any
Rent ue orbecome due and that such Collateral may be removed at any time
to

witq trecourse to legal proceedings as long as the Communications Facility and

EqUi meT t coritinue to serve as collateral of a third party financing entity
I

18 INTERFERljNCE Tenant agrees to install and operate equipment of a type and

frequency ph will not cause radio frequency interference with other forms of radio
frequency co

necessary to
wEfu
unications existing on Landlord s Parcel as of the date of this Lease In
the event Te ant s equipment causes such interference Tenant agrees it will take all
borrect and eliminate the interference
steps
ap ropri
lte consistent with
government aes and regulations
upon receipt of written notification of the interference
If the interfe erice is not corrected within thirty 30 days of
receipt of notification or
such time as nay reasonably be required with exercise of due diligence provided such
repairs ate begun within said 30 days Tenant will cease operation of the equipment
causing such linterference until such interference is cured Landlord shall require that all
future radio qperators desiring to this location will first coordinate with Tenant to
use

ensure that tHeir frequencies and antenna locations will be compatible with Tenant s so as
to prevent habnful
interference Any subsequent tenants will be
required to comply with
the samecon itions set forth in this Paragraph 18

13
19 INDEMNIFICATION Tenant shall defend with counsel reasonably acceptable to

Landlord and indemnify and hold harmless Landlord from all losses costs claims

causes of actions demands and liabilities arising from any breach by Tenant of any
a

covenant of this Lease b any misrepresentation by Tenant and or any breach by Tenant
of any warranty of Tenant contained in this Lease and arising from 1
c
any occurrence

Tenant s con
truction installation maintenance repair operation replacement or
removal of the Communications Facility or any other equipment or any other activities
of Tenant on the Premises and ii the condition of the Communications Facility and
Premises in way related to Tenant s use of the Communications Facility of the
any
Premises including without limitation any personal injury death or other accident in

any way related to Tenant s use of the Premises Such indemnification shall include the
I

cost of inves igation allexpenses of litigation and the cost of appeals including without
limitation ire
sonable attorneys fees and court costs and shall be applicable to Tenant s
activities on the Premises whether prior to the Commencement Date or after the
termination dfthis Lease In addition to the Landlord Landlord s board members staff
officers agerits servants employees volunteers business invitees customers students

family mem ers and gUests shall be beneficiaries of the indemnification This

indemnificat10n shallnot be applicable to the extent of any negligence or willful

misconduct of the Landlord its board members staff officers agents servants

employees v olunteers customers business invitees students family members and

guests

20 INSURANC REQUIREMENTS

a All ploperty of the Tenant its employees agents business invitees licensees
custotners clients or guests in and on the Premises shall be and remain at the sole
risk o the Tenant and Landlord shall not be liable
them for any damage toto or

lossqf such personal property arising from any act of God or any persons nor
from ny other reason unless such damage or loss is caused by the negligence or

willfql act or failurethe part of the Landlord its board members staff
to act on

officers employees agents or volunteers nor shall the Landlord be liable for the
intelTflption or loss to Tenant s business arising from any of the above described
acts r causes unless such damage interruption or loss is caused by the

negligence or willful act or failure to act on the part of the Landlord its board
mem ers staff officers
employees agents or volunteers The Landlord shall not
be liaple for any personal injury to the Tenant its employees agents business
invitq s licensees customers clients or guests arising from the use occupancy
and c mdition of the Premises unless such is caused by the
injury negligence or

willfLjI act or failure to act on the part of the Landlord its board members staff

officqs employees agents or volunteers

b DuriT g the term Tenant will maintain a policy of commercial general liability
insur nce insuring the Landlord and Tenant against liability arising out of the use
operation or maintenance of the Premises and the installation repair
maintenance operation replacement and removal of the Communications
Facili y The insurance will be maintained for personal
injury and property
damage liability adequate protect
to Landlord against liability for injurY or death
of any person in connection with the use operation and condition of the Premises

14
 and to insure the performance of Tenant s indemnity set forth in Paragraph 19 III

an amount not less than THREE MILLION DOLLARS 3 000 00000 per
occurrence
Duringaggregate the term Tenant shall also maintain workers

compensation employers liability insurance and automobile liability insurance

i Worker s
Compensation Insurance Meeting all requirements of

Maryland law

Bodily injury by accident 100 000 each accident

Bodily injury by disease 100 000 policy limits

Bodily injury by disease 100 000 each employee

ii Minimum Automobile Liability

I
Bodily injury 500 000 each person l 000 000 each occurrence

Property Damage 500 000 each owned hired and

occurrence including
non owned automobiles

c Insurance carried by Tenant will be with companies reasonably acceptable to the

Landlord The Tenant will deliver to the Director Department of Facilities
Man gement Montgomery County Public Schools certificates evidencing the
existence and arnounts of the insurance No policy shall be cancelable or
subject
to reduction of coverage
I
or other modification except after thirty 30 days prior
written notice to Landlord
the Tenant shaH as soon as practicable following
renewal or replacement ofsuch policies but in no event more than thirty 30
days thereafter fumish Landlord with renewals or binders forreplacement
policies or otherthat the insurance coverage has been renewed
assurances

Notwithstanding anything to the contrary contained in this Lease the failure of

TenaJilt to maintain the insurance required under Paragraph 20 shaH constitute an
event of default requiring cure by Tenant pursuant to Paragraph 15 b and the
cove age requirements under Paragraph 20 b shaH not be deemed to limit
Tenant s liability under this Lease

d If Tenant desires to self insure Tenant shaH submit to Landlord to be

a request
permitted to self insure Such request shall be accompanied financial by
stateJ11ents of Tenant audited by an independent third party certified public
accountant and shall contain aH relevant information Tenant s self
regarding
insunince plan Tenant shaH provide Landlord with such further
or additional
information Landlord deems necessary in deciding whether to
as
pennit Tenant to
self i sure Landlord s decision whether to Tenant to self insure shaH be
pennit
made in Landlord s sole and absolute discretion shaH be in writing and shall be

effective for a twelve 12 month period from the date of Landlord s

approval of
Tena t s self insurance request subject to the foHowing provision If Landlord
Tenant to self insure then 1 Tenant shall provide Landlord
permiits annually
with updated financial statements
prepared as set forth above for Landlord s
revie and approval and ii immediately notify Landlord of any act or

occurrence which might materiaHy reduce Tenant s net worth or financial

15
 condition or impair Tenant s self insurance program

e Tenant will not do anything or permit anything to be done or any hazardous

condition to exist Increased Risk which would invalidate or cause the

cancellation of the insurance camed
Tenant In the event that any
policies by
such Increased Risk arises Tenant shall promptly remedy the condition causing
such Increased Risk in accordance with the procedures set forth in Paragraph 70f
this Thase

f The Landlord shall be named as an additional insured on Tenant s liability

policies

g The coverage amounts set forth may be met by a combination of underlying and
Urhbr lla policies so long as in combination the limits equal or exceed those
stated

21 HAZARDOUS MATERIALS

a Tenant shall not cause or permit any hazardous or toxic wastes substances or

matetials collectively Hazardous Materials to be used generated stored or

dispqsed of on under or about or transported to or from the Premises

coll ctively Hazardous Materials Activities without first receiving Landlord s

writt n which may be withheld for any reason whatsoever and which
consent

may be revoked at any time and then only in compliance which shall be at
Tenant s sole cost and expense with all applicable legal requirements and using
all n cessary and appropriate precautions Tenant shall indemnify defend with
coun el reasonably acceptable to Landlord and hold Landlord harmless from and

agadst any claims damages costs and liabilities including court costs and legal
fees rising out of Tenant s Hazardous Materials Activities on under or about the
Prem1ses regardless of whether or not Landlord has approved Tenant s
Hazardous Materials Activities For the purposes of this Lease Hazardous
Materials shall include but not be limited to oil radioactive materials PCBs and
subst nces defin d as hazardous substances or toxic substances in the

Comprehensive Environmental Response Compensation and Liability Act of

191m as amended 42 D S C Sec 9601 et seq Hazardous Materials
Tran portation Act 49 D S C Sec 1801 et seq and Resources Conservation and

RecojVery Act 42 US C Sec 6901 et seq and those substances defined as

hadrdous wast s in the regulations adopted and

publications promulgated
pursuant to said laws Subject to the foregoing provisions of this Paragraph
1t
Tena shall prior to the Commencement Date submit to Landlord for

Landjord s review and

approval a list of Hazardous Materials Activities
including types and quantities which list to the extent approved by Landlord shall
be attached hereto as Exhibit C Prior to conducting any other Hazardous

Matefials Activities Tenant shall update such list as necessary for continued
accu
acy If Tenant s activities violate or create a risk of violation of any legal
requirements such activities shall cease immediately upon written notice from
Landlord Landlord Landlord s representati ves and employees may enter the
Premises upon prior notice to Tenant at any reasonable time during the term to

16
 inspect Tenant s compliance hereWith and if required under applicable law may
disclose any violation of legal requirements to any governmental agencv with

jurisdiction The Landlord represents that i it has not and to the best of its

knowledge and except for ordinary herbicides and pesticides used in normal lawn
maintenance it has not allowed or permitted any Hazardous materials to be used

generated stored or disposed on under or about or transported to or ftom the

Parcel in violation of any applicable law or regulation and ii it will not nor will
it lIlitany
peI third party to use generate store or dispose on under or about or

transport to or from the Parcel any Hazardous Materials in violation of any

applicable law or regulation

b LancUord acknowledges that Tenant s equipment shelter shall contain batteries for
back up power and that provided Tenant s use of same is in compliance with this

provIsion the presence of such batteries does not violate this provision if such
batteries comply with all laws regulations and ordinances to Hazardous
relating
Materials

c Tenant will immediately notify Landlord and provide copies upon receipt of all
written complaints claims citations demands inquiries reports or notices
relating to the condition of the Premises or
compliance with environmental laws
Tenant shall promptly and if feasible under the
cure
applicable circumstances
have dismissed with prejudice any of those actions and proceedings to the

reasqnable satisfaction of Landlord Tenant will keep the Premises free of any
lien ihlposed pursuant to any environmental laws Tenant shall have the
right
fromitime to time to submit written inquiries to Landlord with respect to the
existence ofany written complaints claims citations demands inquiries reports
or n ices relating to the condition of the Site or compliance with environmental
laws Landlord shall respond to any such written inquiries within fifteen 15
business days after receipt thereof by Landlord In the event that arty such written
complaints claims citations demands inquiries reports or notices do in fact
exist Landlord also shall advise Tenant as to the current status of Landlord s

S to comply
effoJ therewith
If Tenant determines that Landlord has not
promptly
cured the conditions leading to the issuance of any such complaints claiJ
ns

citatiptJsdemands inquiries reports or notices Tenant shall have the

right to
terminate this Lease on thirty 30 days written notice to Landlord

d Landlord shall have the right at all reasonable times and from time to time to
lct
cond environmental audits of the Premises and Tenant shall cooperate in the
conduct of those audits The audits will be conducted by a consultant of
Landlord s
choosing and if any Hazardous Materials
generated stored
transported or released by Tenant are detected that in compliance
are not with
local state or federal laws and
regulations if
violation of any of the
or a

representations covenants in Paragraph 21 is discovered the fees and expenses

or

of such consultant will be borne by Tenant

If TetJant fails to with any of the foregoing

e
comply representations and covenants
Landlord may cause the removal or other cleanup acceptable to Landlord of
any

17
 Hazardous Materials from the Premises The reasonable costs of removing
Hazardous Materials and any other cleanup including transportation and storage
costs shall be reimbursed by Tenant within thirty 30 days after Landlord s
presentation of invoices therefor Tenant will give Landlord access to the
Premises to remove or otherwise clean up any Hazardous Materials Landlord
however has affirmative to remove orotherwise clean
no obligation up any
Hazljrdous Materials and this Lease will not be construed as creating any such
obligation

22 ASSIGNMENT

a Tenant may not assign this Lease or sublease the Premises without the written
consent of the Landlord Notwithstanding the previous sentence Tenant
may
assign this Lease or sublease the entire Premises without Landlord s consent to
Tenant principal affiliates or subsidiaries of Tenant or of Tenant s principal or
s

to alliycorporation partnership or other

entity which i is controlled by
copttolling or under common control with Tenant ii shall merge or consolidate
with Of into Tenant or iii shall succeed to all or
substantially all the assets
property and business of Tenant In the case of such permitted assignment or
sublease Tenant shall within thirty 30 days
provide to Landlord a the name
and 4ddress of the assignee and b a docUment executed by the
assignee by
whic it acknowledges the assignment and assumption of all of Tenant s

obligations hereunder In all other instances Tenant may only assign or sublease
its ri hts and obligations upon Landlord s written consent A condition
precedent
to each and every assignment or sublease shall be i that no default exiSts under

this Lease as of the date of such assignment or sublease ii certification

by such
assigcrwe that it is in with all
compliance applicable licensing requirements
including those of the FCC and other applicable agencies and iii except in the
event of a tr nsfer permitted pursuant to the second sentence of this
paragraph
Lan lord shall be entitled to all rentals in excess of the rental hereunder
arising
from any such sublease

b For Iny assignment or sublease

requiring the consent of the Landlord Tenant
will prior to entering into such assignment or sublease submit in writing to
Land ord i the name and address of the proposed
assignee or subtenant ii the
busirtess terms of the proposed assignment or sublease iii reasonably
satis actory information as to the nature and character of the business of the

prop sed assignee as to the nature of its proposed use of the Premises iv
banIdng financial or other credit information sufficient to enable
reasonably
Landlord to determine the financial responsibility and character of the proposed
assighee or subtenant and v the proposed form of assignment or sublease for
Landlord s approval

c
Notwithstanding anything to the contrary contained in this Lease and after
prior
written notice to the Landlord Tenant may assign mortgage
pledge hypothecate
or otherwise transfer without consent its interest in this Lease to
any financing
entity or agent on behalf of any financing entity to whom Tenant i has
oblig tions for borrowed money or in respect of guaranties thereof ii has

18
 obligations evidenced by bonds debentUres notes or similar instruments or iii
has obligations under or with respect to letters of credit bankers and
acceptances
similar facilities or in respect of guaranties thereof

d Except for any assignment or sublease permitted by this 22 Tenant

Paragraph
shall not graIlt to or
permit any third party to exercise any rights to install operate
or m ihtaih communications or other equipment on the Tower Or the Premises

withqulLahdlord s prior written approval which approval

may be given
withheld or conditioned on such terms as Landlord may require in its sole and
subjective discretion

23 INSPECTIONS Tenantshall allow Landlord or its agents access for the

purpose of
inspecting thb
Premises and upon prior notification to Tenant to enter the Premises or

any part thereof at any reasonable time in a manner so as not to interfere with Tenant s
use of the Site
Lal1dlord shall be accompanied by a representative of Tenant In
addition wit out in
notice
the event orAn emergency Landlord shall be entitled to enter
thePremiseslor any Part thereof in order to prevent injury to persons or property Tenant
shall at all times provide the Landlord copies of all keys heeded to unlock all of the
gates
and locks to the fences in the Premises

24 QUlET ENJOYMENT Tenant shall be entitled to use and occupy the Premises during
the Term herbof for the purposes herein permitted and subject to the terms and conditions
herein contaihed without molestation or interference by Landlord

25 DAMAGE AND DESTRUCTION

a If the Premises or the Communications

Facility are damaged or destroyed by
reasoj of fire or any other if
damage to the Premises or the
cause or

Cormpunications Facility causes damage to portions of the Site or other property

of Landlord Tenant will immediately notify Landlord and Tenant
may within
30 days after such
thirtYi damage give written notice of its election to terminate
this Lease and subject to the further provisions of this
Paragraph 25 this Lease
will cbase on the tenth 10th day after the
delivery of that notice Monthly rent
will b apportioned and paid to the time of termination If this Lease is so
termi ated Tenant will have no obligation to
repair or rebuild the
Comrhunications Facility but shall comply with all provisions relating to
restor tion of the Premises and or the Site as set forth in
Paragraphs 9 13 and 17
j if such damage or destruction is caused by the negligence or willful
miscopduct of Tehant its board members staff officers agents servants

emplqyees volilnteers customers business invitees or

guests This Paragraph 25
shall IiIot affect Tenant s obligations under
I
Paragraphs 19 20 and 21 of this Lease

b If Tenant chooses to rebuild the Communications

Facility rather than exercising
its terjnination rights under 25
Paragraph a
monthly rent and additional rent will
not abate pending the repairs or rebuilding if such
damage or destruction is caused
by the negligence willful misconduct of Tenant its board members staff
or

office1 s agents servants employees volunteers customers business

invitees or
guests

19
 Landlord shall have no any collocating tenants for
responsibility to Tenant or
or destruction of the Tower or any other collocation equipment which is
damage
fire or other casualty unless such damage or destruction
damaged or destroyed by
willful actions of Landlord its board members
is caused by the negligence or

volunteers
staff officers agents servants employees or

CONDEMNATION If all of the Premises is taken by eminent domain or

26 or
any part
sale in lieu thereof and ifsaio taking or sale renders the Premises unusable for its

intended purpose hereunoer then s or Tenant s option this Lease may be

at Lanoloro

terminated and there will be no further payment of rents except that which may have been
due and at the time Of said taking or sale In the event of a partial taking or sale
payible
to mutu with Lanolord wishes to maintain its operation
il igreement
and Tenant sllbject
Tenant may ontinueto use and occupy the Premises and Landlord shall reduce the rental
taken by eminent
on the Premises by an amount proportionate to the part of the Premises

domain salepr other such H provioeo Tenant at its sole cost restores so
gal action and
much of the rremises as re ains to a condition substantially suitaple for the purposes for
which it wasiused immediately before the taking Upon the completion of restoration
to Landlord on account of the
Landlordspa11 pay Tenantthe lesser of the net award made
taking after educting from the total award attorneys appraisers and other costs
incurred in c mnectidn with obtaining the award or Temlllt sactual out of pocket cost of
LandJord
and shall keep the balance of the net award received in
restoring the IPremises
connection with any taking subject to this paragraph

27 BINDING EFFECT This Lease shall bind and inure to the benefit of the parties hereto

and their respective successors and perrnitteo assigns

28 RECORDATION Either party may recorO this Lease or a Memorandum of Lease

land records but such
Agreement i the form annexed hereto as Exhibit H in the county
of the and shall not burden the
sh ll beat the sole expense
recording requesting party
other party

29 NOTICES All notices payments demands and requests hereunder shall be in writing
and shall be deemed to have been properly given when mailed by United States First

Certified Mail postage by reliable overnight courier and

Class Registered or prepaid or

addressed to the Landlord as follows

Board of EOucation of Montgomery County

850Hungerford Drive
Rockville Maryland 20850

Attn Director of Facilities Management

1
I with a copy which will not constitute notice to

I
a Reese Carney LLP
I 255 North Washington Street Suite 505
I

20

I
 RockviUe Marylltnd 20850

and to Tenant as follows

Nextel Communications of the Mid Atlantic Inc

7055 Samuel Morse Drive Suite 100
Columbia 110 21046
Attention Property Manager

with a copy which will not constitute notice to

Nextel Communications Inc

2001 Edmund Valley Drive
Mail Stop 4W400
Reston VA 20191 3436
Attn Site Leasing Services Contracts Manager

or to such other addresses as either of the parties from time to time

may designate by
giving writtep notice as herein required

30 WANER No waiver by either party of any breach of any covenant condition or

agreement contained herein shall operate as a waiver of the covenant condition or

agreement itself or of any subsequent breach thereof

31 ENTIRE AGREEMENT This Lease contains the entire agreement of the

parties and
their commitlnent to the terms hereof and may not be amended altered or otherwise

changed exc6pt by subsequent writing signed by the parties to this Lease

Notwithstanding anything to the contrary set forth in this Lease Landlord and Tenant
agree that the following provisions of this Lease shall not be applicable if Tenant is not
constructing a tower or other structure or replacing an existing light standard with a
tower or oth r structure I the portion of the second sentence in
Paragraph 1 from
structure tirough the end of such sentence ii Paragraph 10 f iii Paragraph 17 f
Any term or ondition determined to be unenforceable or of no legal effect shall be
severable and have no effect on the remaining provisions of this Lease
32 GOVERNA CE This Lease shall be governed
by construed and enforced in
accordance yith the laws of the State of Maryland

33 CONFLICTS Each party represents and warrants that no officer

employee or agent of
its organization has been or will be
paid any sum or offered any gift gratuity
employment br other consideration by or from the other party its affiliates or agents in
connection ith assistance in obtaining arranging negotiation or continuation of this
Lease

IN WITNESS WHEREOF the have caused this Lease to be

parties signed by their
authorized representatives

21
WITNESS FOR BOARD OF EDUCATION OF
MONTGOMERY COUNTY

1l P hcu b
bFw st Ed tl
Title of Schools
Superintendent

Date ria lj
J

TENANT Nextel Communications of the Mid Atlantic

Inc a Del orporation dJb a Nextel Communications

1 A
By
tl
EUg M Noel III
Title Vice eSldent Site Development Northeast RegIOn
I ts
r
Date
I t

22
 wit
STATEDF MARYLAND COUNTY OF

I HEREBY CERTIFY that on this 3 day 6fH t

tlu2004 before me
the subscriber a Notary Public in andfor the State aforesaid personally appeared DR JERRY
D WEAST as for Montgomery County Public Schools who made oath in due
representative
form oflaw under the penalties of perjury that the matters and facts set forth in the foregoing
document are true and correct to the best of hislher personal knowledge information and belief
and that helshe freely and voluntarily executed this document for the purposes therein contained

AS WITNESS my hand and Notarial Seal

p
rtrL
tt Public

I nb
d
My Commission Expires
t1s
lU
Yh
STATE OF 1 VT tiP COUNTY OF 4i
1Jdt to wit

2004 before me
I HEREBY ERTIFY that on this Ii day of

the subscriber a NOtary Public in and for the State afores id lj personally appeared Eugene M

Noel ill who acknGwledged under oath that he is the Senior Director Site Development for
Mid Atlantic Inc and that he is duly authorized to execute this
Nextel Communicaq ons of the
instrument on behalf of Nextel Communications of the Mid Atlantic Inc

AS WITNESS my hand and Notarial Seal

A
Notary Public

My Commission Expires
Notary Public
l
Susan M Keenan
P MSMWPDATAnextel woodward lse wpd Commonwealth of Massacl1usetts
June 15 2004 My Commission Ex res on Feb 25 2011

23

I
JUN 25 2004 J j 19AM NEXTEl
NO 3429 P 2

EXIUlltT A

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JUI 25 2 D4 II 19AM
NEXTEL
NO 3429 P 3

EXllffiITB
IMllp Showing Non E dnsive
Right ot
Way 311d Easem
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To Be ProVided
fNecessary

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 EXHIBIT B 2

Map Showing Non Exclusive Right of Way

x
PROPOSED EA5EJj NT DATA Initiiirs
NO ARIHQ
ElE yc
DtST

G N W nl 40 10 00
N zv Jlt 20 W w
2e

0 W 2iI 40 10 00

@ 2ft JO 20 E 2ug

270 3 F OR oiXK
2At 1

fflr
PARcEl A
7lOH PuT
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O
USE PlAT HO 2S

N 50 29 040 E 59 70
JB7
0

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BUILDINC

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C 00
o I COOH1Y
ClARllOF
I 11ON

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RSl1
UNM
I SJlYER SPRING WO
0021JliI3
2SI 06 A
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EXHIBIT 1
C D MEEKINS ASSOCIATES INC UTILITY EASMENT
CONSULTING ENCINEERS SURVEYORS ARCOLA ERS NEXTEL 1 887
TOy
159 A1N STREET SECOND FLOOR P O BOX 2151 919 UNlVERSllY SILVER SPRING
BLVD
ANNAPOUS MARYUND 21404 2151 lJlH D
Ecnoo DISJRIcr IIOIITGOUERr COUtllY l
ID
PHONE 410 267 0W
COM oo 3799C SCALE 1 60 DATE 08 07 02 JOB NO 00 3799
 EXHIBIT C

HAZARDOUS MATEroALS ACTIVITIES TENANT

Batteryl Battery gel

x
Initials
Petroleum

x
Initials

1
j

i
I
I ODMA IPCDOCS TELECOM
4OO 132 1
00
 EXHffiIT D

SCHOOL HOURS

Does not Apply at this Time

7 00 a m to 7 00 p m Monday through Friday

COMMUNITY USE

For permission to enter the Premises after school and on weekends the Tenant shall

contact the Office of Community Use of Public Facilities 410 777 2706 re
County
their schedule of acti vities

Initials

Does not at this Time

Apply x
Initials

i
i

j
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27

I
 EXHmIt It

RECOMMENDATION OF TELECOMMUNICATIONS TRANSMISSION

FACILITY COORl INATING GROUP TTFCG

AND

APPROVAL OF THE CITY OF GAITHERSBURG

Initials

x
Initials

28
 CITY OF GAITHERSBURG
31 South Summit Avenue
Gaithersburg Maryland
301 258 6330

BOARD OF APPEALS
RESOLUTION APPROVING

A PETITION BY NEXTEL COMMUNICATIONS REQUESTING AN AMENDMENT TO

SPECIAL EXCEPTION A 500 TO ERECT A TELECOMMUNICATIONS FACILITY
ANTENNAE AND RELATED GROUNDEQUIPMENTlOCATEDIN THER A LOW
DENSITYRESIDENTtAL ZONE BYl24 25 11 OFTHE ZONING ORDINANCE
CHAPTER 4 OF THE CITY OF GAITHERSBURG CODE ON PARTOF PARCEL A
THE 1RESURVEY ON FELLOWSHIP GAITHERSBURG MARYLAND

A 50Q A

OPINION

This matter has come before the Board of Appeals as a special exception petition
by Nextel Communications to add 12 antennae and related ground equipment to an
existing 105 foot monopole located on Part of Parcel A The
Resurvey on Fellowship
Gaithersburg Maryland The property is north of Mid
County Highway approximately
2500 feet west of the intersection of Mid County Highway and Woodfield Road Saybrooke
Oaks Blvd Maryland Route 124 Access to the site is via an easement located on the
south side of Emory Grove Road east of Capella Lane and west of Tea Rose Drive The

property is IOGated in theR A Low Density Residential Zone The speCial exception is
allowed by 924 25 11 of the City of Gaithersburg Zoning Ordinance Chapter 24 of the
City Code in compliance with 924 167A D The Board s authority in these matters is
provided pursuant to Article 66B Section 4 07 of the Annotated Code of the State of
Maryland and 924 187 b of the Zoning Ordinance Chapter24 ofthe City of Gaithersburg
Code which uthorizes the Board to hear and decide only those special exceptions as the
Board of Appeals is specifically authorized to pass on by the terms of this Chapter

pperative Facts

In 1998 the Mayor and City Council of

Gaithersburg approved Ordinance 0 21 97
which allows elecommunication facilities subject to requirements to be permitted
by
pecial exception 924 25 11in the R A Zone The purpose of a use by special
exception
IS to allow the Board of
Appeals to prescribe appropriate conditions and limitations on
these uses
Alex
MFlgyar Tectonic Engineering Surveying Consultants
p on behalf of
C
NextelCommunications originally filed the application and exhibits on August 22 2003
The petition equested an amendment to special exception ASOO for 12 additional
antennae at the 92 foot mark of an existing 105 foot monopole and related
ground

A SOO A
 equipment TheeXisting monopole was the subject of special exception A 500 granted to
Sprint PCS APC Realty Equipment Co LlC by the Board of Appeals in March 2002
The property is owned by Montgomery County Public Schools and is located in the R A
Low Density Residential Zone Gaithersburg Maryland

The Board of Appeals reviewed the amendment on Thursday October 9 2003 at

7 30 p m at City Hall A public hearing is not required for an amendment to an existing

special exception
The Board reviewed 15 exhibits including the Applicant s summary of proof site
plan ar tenna specifications the letter of intent for a lease agreement and coverage
projection maps Alex Magyar Tectonic Engineering and Survey Consultants PC
representing Nextel Communications presented argument on behalf of the petitioner citing
the petitioher s compliancevvith 924 167A of the Zoning Ordinance

Relevant Statutory Provisions

The following statutory proviSions from the City Zoning Ordinance Chapter 24 of the
of
City Gaithersburg Code are among the provisions which define the nature and extent
a special exc ption that may be granted by this Board and the criteria
upon which they
may be appro ved

DIVISION 1 R A ZONE LOW DENSITY RESIDENTIAL

Sec 24 25 Uses permitted as special exceptions

11 Telecommunications facilities subject to requirements of Section 24 167A C 2

Section 24 167 A Satellite television antennae and towers antenna and lor
poles
other structures intended for use in connection with
transmission or receipt of radio or television signals or
telecommunications facilities

D Telecommunications facilities

1 Standards when allowed as permitted use

2 A 500 A

t
 The following standards apply in those zones in which telecommunications facilities
are allowed as a permitted use

cabinet may be
a An antenna and a relat d unmanned equipment building or

installedona rooftop ofbLiildings on privately owned land which at least are

O feet in height An antenna may bernounted on the wall of a building

facing the rear lot line at a height of at least 30 feet An antenna may not be
mounted on the rear wall of a building on a through lot A
telecommunications facility antenna must not be mounted on the facade of
anyhuilding designedbr used as a one family residential dwelling An
urtmatlned Jipmentbuildng
eqi or cabinet may be located on the roofof a

bUildingprovideg it aM all other roof structures do not occupy more than

415 of area Unmanned equipment buildings of cabinets t at

oof
ther
il1cr asethero6f coverage ofall roof struC1 ures to occupy more than 25 of
he roof area may be approved by the
jJoard of appealsias a special
exceptionih accordance with Sub section 2 of this Section

b TelecommuniCations antennae may be attached to a free standing monopole

on privately p nedland A free standing monopole including antenna
structure for a telecommunicatiohs facility is permitted up to 199 feet in
eight with a et back of one foot for every fOQt of heighffromall adjoining
residentially zoned properties and a set back of one halffoot for every foot
of h ight frornadjoiniog non residential properties

c An unmanned equipment bUilding or cabinet included as part of a

telecommunications facility privately owned land must not exceed 560

on

square feet arid 12 feet in height Any such equipment building or cabinet
must be so I cated as to conform to the applicable set back standards of the
zone in which the property is classified

d Public Property

I A private telecommunications facility may be loca ed on public

property or attached to an existing structure owned or operated by the
City of Gaithersburg and shall be a permitted use in all zones The
use of any property owned or operated by the City shall be at the
discretion of the City Council and shail not be subject to the same
conditions and requirements as are applicable to such facilities on
privqteJy owned property The City Council may but is not required to
hold a public hearing prior to its decision to allow the use of property
owned or under the control of the City

ii A private telecommunications facility may be located on public

property of or attached to an existing structure owned or operated by

3 A 500 A
 1 LJ
N

or on
a county s ate federal or other non City governmental agency
the property of an independent fire department or rescue squat
as are applicable to
subject to the same conditions and requirements
such facilities on privately owned property

visual
e All such antennae shall be located and designed so as to minimize
impact on surrounding properties and from public streets

f No signs are permitted in connection with any telecommunications facility

the
g Mo Iightsare permitted on any monopole or antenna unless required by
Fed erj I Communications Commission the Federal Aviation Administration
6rthe City

h All monopoles erected as part of a telecommunications facility must maintain

at least three telecommunications carriers provided however that a
to
monopole or other support structure designed or engineered
accommodate less than three telecommunications carriers maybe permitted
Board of Appeals
by special exception when approved by the
and
i No more than one monopole is permitted on a lot or parcel of land no

two monopoles may be located within 1000 feet of each other in any zone in
which such facilities are permitted uses In any such zoneS more than one
monopole may be permitted on a lot or parcel and two or more monopoles
may be located within 1 000 feet of each other by special exception
approved by the Board of A special exception to permit either the
Appeals
loeation of more than one monopole parcel or two or more
on a lot or

monopoles within 1 000 feet of each other may only be approved by the
Board of Appeals if the applicant establishes that existing
tEllecommunications facilities serying the same service area have no
additional capacity to include the applicant s antenna or that co location on
an existing monopole is technically impractical and that engineering criteria

establish the need forthe requested facility In addition any such application
must comply with all of the other standards and requirements applicable to

special exceptions for telecommunications facilities

0 Every free standing monopole or support structure and any unmanned

equiprnent or cabinet associated with telecommunications facility must be
a

r rnoved at the cost of owner of the facility when the telecommunications

facility is no longer in use by any telecommunication carrier

2 Standards and requirements applicable to special exceptions for

telecommunications facilities

a An application for a special exception for a telecommunication facility may be

approved by the board of appeals if the board finds that

4 A son A
i

I
II
I
 J J ib
t b I I
jb
C
U

in Section 167A D 1
1 Complies with all ofthe standards contained

2 The location selected is necessary for the public convenience and

service
3 The location selected is not in an area in which there is an over
concentration offreestanding monopoles towers or similar structures

4 The location selected for monopole is more than 300 feet from
a

either the nearest boundary of a historic district or more than 300 feet
frornthe nearest boundary of the environmental setting of a historic
resource that is not within a historic district

5 The location selected for a is suitable for the co location of

monopole
at least three 3 telecpmmunjcationantennae and related unmanned
cabinets or Jiprnent
eq buildings and the facility is designed to
accommodate at least three antennae The holder of a special
3
exception may not refuse to permit the co location of two additional
arit nnae and related equipment buildings or cabinets unless
Collocation is technically impractical because of engineering and
because it will interfere with existingselvice The refusal to allow such
of the special
co location without just cause may result in revocation

exception

6 Inthe eyent a telecommunications facility is proposed to be located

on 11 rooftop or structure the board of appeals must find that the

building is at least 30 feet in height in any multi family residential

zone or non residential zone and 50feetin height in anyone family

reSidential zone Rooftop telecommunications facilities may not be

located on a one family residence

7 In the event a telecommunications antenna is proposed to be located

onthe acade ora building the Board of Appeals must find that it is to
ed at a height at least 30 feet on a building located in a multi
belop
famllyresidential zone or non residential zone and at a heightgreater
than fifty 50 feet anyone farnily residential
in zone A
teleCommunications antenna must not be mounted onthe facade of a

one family residence

8 In any residential zone the board of appeals must find that the

eqoipmEllit building or cabinet does not exceed 560 square feet and
12 feet jnMight and is faced with brick or other suitable material on
all sides and that the facades are compatible with the other building or

buildings located on the lot or paroeL Equipment buildings and

ii
cabihets must be landscaped to provide a screen of at least three
feet The Board may require that monopoles 1 be camouflaged 2

i
l
5 A SOO A

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 llQl
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t J b r 1 1 13

be placed within apart of an existing structure or 3 be constructed in

such a way that the monopole appears to be part of an existing
structure

9 The board must further find that any equipment building or cabinet is
located in conformity to the applicable set back standards ofthe zone

10 The board must find that the addition of an equipment building or

cabinet proposed to be
located on the roof of a building in
combination with all other roof structures does not create the
appearance of an additional story and does not increase the roof
coverage bymorethan an additional10percent The board must also
find that the structure is not visually intrusive

11 The board must also find that free

a standing monopole or other
support structure is proposed to hold no less than three
telecommuniqations carriers The board may approve a monopole or
other support structure with fewer than three telecommunications
carriers if the applicant establishes that a existing
telecommunications facilities serving the ame service area have no

additional caPllcity to include the applicant s antenna or b the

ap licar
it establishes that eo location on an existing monopole is
technically impractical and that engineering criteria establish the need
for the requested facility and the approval of the
application will not
result in an over concentration of similar facilities in the
surrounding
area

b Area requirements

1 The minimum parcel or lot area is sufficient to accommodate the

lOCation requirements for the monopole or other support structure as
hereinafter set forth in subsection C

2 In no event may the minimum parcel or lot area be less than the lot
area required for the zone in whieh the monopole or support structure
is located

3 For the purpose ofthis section the location requirement is measured

from the base of the monopole or other
support structure to the
perimeter property line

4 The board of appeals may upon request of the applicant reduce the
location requirement to not less than the
building set back for the
applicablezone provided the board makes the additional finding that
the reduced location requirement results in a less
visually obtrusive
location for the
t monopole or other support structure In making that

6 A 500 A
 r1
h I U JJ

additional finding the board shall consider the height of the structure
topography existing vegetation planned I mdscaping the impact 011
adjoining and nearby residential properties if any and the visibility of
the monopole or othe support structure from adjacent streets
r

c Location Requirements for structure A monopole or other support structure

must be located as follows

1 In residential zones a distance of one foot from the property line for
every foot of height of the monopole or other support structure

2 In non residential monopoles and other support structures

zoneS

mustbelocated at a distance ofone halff60t from the property line of

adjacent non residentially zoned property fOr every foot of height of
the opole or other support structure Such structures must be
mOf
located a distance of one foot from the property line of adjacent
residentially zoned property for every footiof height of such structure

d Signage No signs perrnitted

are in connection ith the establishment of a
telecommunications facility

e Lights No lights or other illumination devices are permitted on a monopole or

other support structure unless required by the Federal Communications
Commission the Federal Aviation Administration or the board

f Removal of Telecommunications facilities Every free standing monopole or

support structure and any unmanned equipment building or cabinet
associated with a telecommunications facility must be removed at the cost of
pwnerof the facility when the telecommunications facility is no longer in use
by the telecommunication carrier

ARTICLE VIL Board of ADPeals

Sec 24 187 Powers and duties

The board of appeals shall have the following functions powers and duties

b Special Exception To hear and decide only those special exceptions as the
board of appeals is to the terms of this chapter
specifically authorized pass on by

7 A 500 A

i
if

I
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J J c JJO
OO r IQ l

The board of appeals is empowered to prescribe appropriate conditions and

limitations upon the approval of speCial exCeptions Special exceptions approved by the
board shall be implemented in accordance with the terms and or conditions seHorthin the
Board s decisipn and shall include the requirementthat the petitioner hall be bound by all
of the petitioner s testimony and exhibits of record the testimony of the petitioner s
witnesses and representations of the petitioner s attorneys to the extent that such
evidence and representations are identified in the board sopihion approving the special
exception Vioilationofsuch conditions and limitations shall be deemed a violation of this
chapter and further shall constitute grounds for revocation of such special exception

Sec 24 189 Findings required

b Special exceotions A special exception may be granted when the board of

appeals finds from the evidence of record that the proposed use

1 Is a permissible special exception within the zone and that the

application therefor complies with all procedural requirements set forth in this article
chapter and the development standards for the zone within which the intended use will be
located

2 Complies with all standards and requirements specifically setforth for

such use as may be contained in this chapter

3 Will not be detrimental to the use peaceful enjoyment economic value

ordevelopment of sumll mding properties or the general neighborhood and will cause no

objectionable noise vil1lrations fumes odors dust toxicity glare or physical activity

4 Will be in
harmony with the general character of the neighborhood
considering population density design scale and bulk of any proposed new structure or
conversionofexistiIJ9 structures as well as the intensity and character of activity traffic
and parking conditions and number of similar uses

5 Will be consistent with the master plan other

or planning guides or

capital for the physical development of the district

programs

6 Will not adversely affect the health safety security morals or general
welfare of residents visitors or workers in the area

7 Will be served
I by adequate public services and facilities including
ii and fire
police protection water and sanitary sewer storm drainage public mads and other
public improvements and

f 8 A SOO A
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8 residential zone where buildings or structures are10

When located in a

be constructed reconstructed or altered shall whenever practicable have the exterior

appearance of residential buildings and shall have suitable landscaping screening

or

fencing

Findinqs and Conclusions

Based appellants arguments binding testimony and evidence of record the

on the
Board finds that the application proposes to construct operate and maintain 12 panel type
antennae measuring approximately 48 inches high by six 6 inches wide by eight 8
inches in depth at the 92 fuot elevatioh of the 105 footexisting monopole The petition
also includes one 240 square foot equipment building at a height often 10 feet six 6
inches The location of the monopole and antennae is within the R A Low Density
Resiqential Zone and isallowed by special exception as stated in 924 25 11 of the
Zoning Ordinance Chapter 24 of the City Code

The applIcant has shown that the height ofthe monopole is 105 feet in height The
JprSEldpanelctyopei3ntpae whithare 48 inches in height will be mounted at the 92
foot Ievation jof the monopole The unmanned equipment building for the antennae is
located on the ground south of the monopole and attached to the antennae via an
icebridge An xisting six 6 foot tallchain link fence surrounds the equipment building
and the monopole The equipment building is 240 square feet 20 feet by 12 feet at a
height pf 10 f et 6 inches The exterior elevation was found to have a pebble dash in
earth tones to bJend with the existing environment The compound fur Nextel Comcast
andSptint s e lJipmentis screened with existing foliage on the north west and south
side jmpound
ofthEn ight 8 blue spruce trees planted staggered at an eight to ten
8 10 fo6thei ht as requited by the Zoning Ordinance for screening trees was added as

acohlitibn of Special 500 on the east side of the compound

ExceptionA The

propag tion n1aps have shown that the location selected will enhance the coverage of
service for public convenience and service and fill a void within
Nexfelrt flel corTl mication
the system ortheprovider

The BO3rd findsthaqhe petitioner has proved thatthepetition

permissible by 924 is
25 11 complies
mce and that it also
with the procedural requirements
Zoofnthineg Orqih
forth
set ihAltipleVII pfthe Zoning Ordinance provided for the review of special exceptions
by lheEloard of Appeals The proposed use is consistent with the master plan of
NElighb9rhoodiiOheinwhichthisproperty is located The applicant has shown compliance
with the staridardsand requirements specifically set forth fortelecommunlcation facilities in

924 167A D 1 and 2 as discussed above

Tte ofthe petitioner s representative has shown that such use will not be
testir
nony
detrimental peaceful enjoyment economic value or development of surrounding
use
toth
propertie orth general neighborhood and will cause no objectionable vibrations fumes
odors dust toxicity gJare or physical activity The applicant has shown that this use will
also not adver elyaffect the health safety security morals or general welfare of residents

9 A 500 A
 u 4
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J OO O t 11 5
1

visjtors or workers in the area

The petitioner has shown that this petition is in harmony with the general character
of the neighborhood Because the l will only require monthly maintenance checks
USl
consistihgof one vehicle this use will not impact the traffic or parking conditions within the
neighborhood The land and structure will not increase the need for more services The
applicant has shown that this use is not located near or within any of the City s historic
districts In conclusion the Board of Appeals has found that the petitioner has submitted
sufficient evidence arguments and testimony for the approval of a telecommunications
facility with conditions as stated below The petition has shown compliance withs24
167A D 1 l 2 and
an s24 189 b

RESOLUTION

NOW THEREFC RE BE IT RESOLVED by the Board of Appeals of the City of

Gaithersburg bn the 9th day of October 2003 that Case A 500 A the petition of Alex
Magyar Tectonic Engineering and Surveying Consultants P C for Nextel
Communications requesting an amendment to special exception A 500 for an additional

telecommunications facility in the R A Low Density Residential Zone on Part of Parcel A

The Resurvex on FelloWship Gaithersburg Maryland be APPROVED with the following
conditions

1 Priqr to the application of building permit the petitioner is to provide an

a

eXecutedlease from the Montgomery County Board of Education that requires

at uchtime CIs Nextel Communications Ceases to operate that the antennae

anq associated equipment be removed

2 At such time as Nextel Communications ceases to operate its antennae
cab llets and associated equipment shall be removed

3 At such timeas Sprint PCS APC Realty Equipment Co LLC ceases to

operate its antennae cabinets and associated equipment shall be removed

4 At such time as Comcast Communications ceases to operate all related

equlipmentshall be removed

5 At uch time as Nextel Communications PCS APC Realty Equipment Co

LLc and Cbmcast Communications cease to operate the monopole and any
remaining equipment shall be removed

6 Sprint to receive on site permit for the monopole and landscaping prior to the
issLiance of any permits for A 500 A

7 Spriptto obtain final building permit for the A 500 monopole prior to the issuance
of any permits for A 500 A

10 A SOO A
 1
lQlc t1bb I l l

8 Nextel shall submit an Actual Coverage Thresholds map to the Board of Appeals
prior to the release of final building permit

Adopted unanimously by the Board of Appeals of the City of Gaithersburg on the

9th day of October 2003 Board Members Kaye Knoebel Macdonald and Karst being
present and voting in favor of the action

THIS IS TO CERTIFY that the foregoing

Resolution was adopted by the City of
Gaithersburg Board of Appeals in a
public meeting assembled on the 9th day
of October 2003

Caroline H Seiden lanner

Staff Liaison to the Board of Appeals

I 0

Date
1z o3

Any decision by the

City Board of Appeals may within thirty 30 days after the
decision is rendered be appealed by any person aggrieved by the decision of the Board
and a part to the proceeding before it to the Circuit Court for
Montgomery County
in
accordance with the Maryland Rules of Procedure

The Board of Appeals may reconsider its decision in accordance with its Rules of
Procedure upon the request of any party proVided such request is received not by writing
more than ten 10 days from the date the Board of Appeals renders its final decision

11 A 500 A
 EXHIBIT F

SITE Woodwards Road School Site

RIGHT OF ENTRY AGREEMENT

This Agreement made this day of 2004 and

by

between Montgomery County Public Schools hereinafter the Grantor 850 Hungerford Drive

RockvilIe Maryland 20850 Comcast Cablevision of Potomac LLC Comcast or Tenant

and Nextel Communications ofthe Mid Atlantic Inc a Delaware corporation dlblaNextel

Communications
7q55 Samuel Morse Drive Suite 100 Columbia Maryland 2104

Grantee

x
WITNESSETH Initials

That the Grantor has entered into lease with Comcast Comcast Tenant has
a
whereby as

the right to use and occupy the Grantor s

property known as Woodwards Road School Site

located at
Emory Grove Road Gaithersburg Maryland 20877 the Property

That in ideration of mutual benefits to all Grantor and Comcast do

con accruing parties

hereby grant its servants the

to GraJ1tee or employees temporary right to enter onto a
portion of

the Property for the purpose of of the school site to conduct and
traversing a
portion perform

with the prior approval of Grantor and Tenant all of the activities
some or following surveys

geotechnical soil
bOljings and analyses environmental assessments radio propagation studies and

such other tests and of the property Grantee may deem necessary
jnspections as or advisable

The area of this Rig tof Entry is shown

more particularly as highlighted on the drawing labeled

Exhibit B attached to the Lease Agreement for Telecommunications between Grantor and

Grantee

This Right of Entry Agreement shall commence on 2004 and

terminate sixty 60 days later Grantee shall not conduct its activities hool
during regular sc

29
hours as provided in the Lease Agreement In accordance with the following special conditions

during the term of this Grantee

agreement hereby agrees to

1 Contact at least five 5 business in advance the Tenant with

days a lease over the

majorportion of the Property Grantee shall inform Comcast of the nature and extent of

activities the Property by Grantee its

on
employees lbcontractorsand
sl agents and obtain its

permission to enter upon the Property in accordance with any restrictions established by Tenant

2 Perform all work within the limits of the defined areain accordance with the local

government specifications including the obtaining of all licenses and permits

required evidence

of which shall be provided to Mr Richard G Hawes Director Department of Facilities

Management

3 Indemnify and save harmless Grantor its and

agents employees against all liability

claims and demands for personal injury property damage other expenses suffered
or or arising

out of or caused by act or omission of Grantees their servants due to their

any or employees

entry onto Grantor s Property

4 Indemnify and save harmless Tenant its agents and all

employees against liability

claims and demands for personal injury property damage or other expenses suffered or arising

out of or caused by any act or omission of Grantee its servants due to their
or employees entry

onto Grantor s Property

5 Guarantee that contractors and or assigns provide and keep in force and effect until the

termination of this agreement the insurance with insurance

following companylcompanies
licensed and do business in the State of
qualified to Maryland The Grantees must submit to the

Director Department of Facilities Management a certificate of insurance Said insurance shall

protect the Grantor from any claims arising from the Grantees or the operation of their

30
subcontractors or by anyone directly or indirectly employed in the work by any of them under

this Agreement

a Worker s Compensation Meeting all requirements of Maryland law and with the

following minimum Employer s Liability limits

Bodily Injury by accident 100 000 each accident

Bodil yiI1jury by disease 500 000 policy limits
Bodily limits by disease 100 000 each employee

b Genenil Liability
Commercia Minimum of one million dollars 1 000 000

combined single limit for bodily injury and property damage per occurrence including the

following coverages contractual liability premises and operations independent contractors

underground explosion and collapse hazard broad form and

property damage personal injury

Minimum Automobile Liability 500 000 each person

c
Bodily injurY 500 000

each occurrence Property damage 500 000 each the

occurrence including following owned

automobiles hired automobiles and nonowned automobiles

d Additional insured The Grantor must be named as additional insured on all

Commercial and Minimum Automobile

V
Gener Liability Policies

Police Cancellation Thirty 30 written notice of cancellation

e
days or material

change in any of the is

policies required

f Certificat Ho der Montgomery County Public Schools

Department of Facilities
c o I Management
7361 Calhoun Place Suite 400
Rockville Maryland 20850
Attention Richard G Hawes

5 No vehicles equipment dirt or materials of any kind shall be stored on the Grantor s

property

6 Restore disturbed areas as near as to

possible original condition

31
 hereto have caused this of the day
Accordingly the parties agreement to be executed as

and year first above written

WITNESS MONTGOMERY
GRANTOR

Bv
Ri ard G Hawes Director

partrhent of FacilitieS Manage

OMCAST CABLEVISIO F POTOMAC LLC

TENANT

BY

Title

Date

GRANTEE

I
I

Eugene M Noel III

Vice President Site Development Northeast Region

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Date

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 EXHIBIT G

CURRENT BOARD POLICY ECN

Attached hereto

x
Initials

x
Initials

P MSMWPDA TA Inextel woodward se wpd

May 25 2004

33
 ECN

BOARD OF EDUCATION
POLICY OF MONTGOMERY COUNTY

Related Entries

Responsible Office Supportive Services

Telecommunications Transmission Facilities

A PURPOSE

To establish the criteriaby which the Board of Education will evaluate and make decisions
conceming applications to place private telecommunications transmission fucilities on sites owned
by the Board of Education

B ISSUE

There have been requests to place private telecommunications transmission fucilities on sites owned

by the Board of Education Federal and county laws provide for such placements The Board of

Education needs to have criteria with which to consider such requests without compromising the
school System s primary mission to provide a safe and supportive environment for the academic
success ofeVery student

C POSITION

The Board of Education supports federal and CQunty legislation relating to the infrastructure
of modem telecommunications systems and wishes to implement these laws without

contravening the primary mission of the organization which is to provide a safe and

supportive environment for the academic success of every student

2 Factors such as compatibility with the COill1ty s Master Plan and school site
site size

development plan impact on school operations school and community input including
school petsonnel and neighborhood citizens concerns compensation and the ability to
locate teleCQmmill1ication fucilities at the site shall all be CQnsidered when evaluating sites

for telecommunications fucilities on school property Specifically the following criteria will
be considered in the evaluation of proposals

a Conformance of the with federal and county legislation as demonstrated

proposal
in the COill1ty s Telecommunications Transmission Facility Coordinating Group s

1 of 4

if

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 ECN

ITFCG recommendation and the Maryland National Capital Park and Planning
Commission M NCPPC report

b Telecommunications providers must show evidence ofpursuit ofco location with

other vendors and or existing fucilities

c Telecornrnuhications providers must have a long range master plan for future
nunicatibns
teleeomi transmission futilities throughout the eounty

d Impact on the school site and operations based on input from school stafl PTSA
community groups and fucilities staff These considerations should include the

fullowing

I NO site shall be eonsidered unless it meets the acreage needed for standard
setback requirements

2 No private s1l1Icture shall be placed on school buildings unless specifically

negotiated and agreed to in the terms oftbe lease

3 Arty proposed installation must satisfY all legal safety and health
requirements set forth in federal state and county codes and regulations

4 Arty proposed installation must be architecturally and aesthetically

compatible with the school site

S For applications involving new monopoles or towers the applicant making

the proposal is responsible for notification of potentially affected
eommunities

6 Ins1allation and location shall not disrupt nonnal operation of school system
activities andlor eommunity activities as determined by the principal or site

manager

shall bear all liability and

7 The applicant responsibility and related costs for

mamtenance arising from the installation and its operation This would
include relatedupkeep repair and appearance of the tower monopole
equipment building enclosed grounds and fencing and provision for its
removal

lof 4
 ECN

e Demonstrated record in other site installations of compliance with contracturaI

In the event of the
agreements and adherence regulatClry standards
to

telecommunications company s bankruptcy a sufficient bond is in place to cover

the cost ofremoving the transmission fucility and returning the site to its previous
condition

Benefit to the Board including provision of revenue to support educational

1
imProvements

3 A standard MCPS lease forin shall govem all leases and pennits for telecommunications
facilities schbolproperty The
on lease pennit shall require indemnification ofthe Board
its employees and agents by the applicant for any contingent liability arising from the
The telecommunications company may not access the property
operationofthefucility
during sehool Hours except with prior notice andapprClval ofthe official designated by the
buildingadminist 31 The school system reserves the right prior to the conclusion of its
br
sclted tehn to terininate the lease for cause illcluding lack of adequate maintenance
Revisions to the standard leasepermit form except for changes required due to site specific
concerns shal not be accepted

4 TI1e superintendent will review and if necessary gather additional views ofthe community
as well asprincip ls al1ct1ot site managers and evaluate those views prior to making a
decision

5 Based on the criteria set forth in this policy the superintendent will decide whether to
aplJrove therequest and if so negotiate the most favorable tenns The applicant will be
responsible for
remoVing the installation completely and returning the site to its previous
condition at conclusion of the contract

D DESIRED OUTCOME

Fair and consistent criteria with which to evaluate the appropriateness of placing telecommunication
transmission infrastructures on school sites so that they do not detract from the primary mission of
the school system

E IMPLEMENTATION STRATEGIES

Incompliance with Montgomery County Executive Regulation 1496 the TfFCG will
submit recori1Jnendations on proposed installations to the school system

3 of 4
 ECN

2 For those actions for which M NCPPC approval is required the superintendent will
transmit that recommendation to the M NCPPC for its review under the mandatory
referral 1be review will include expert testimony and citizen
or special exception process
input

1be superintendent will and school PTAs of the proposed installation

3 notify site managers

4 The supennumdent will receive the M NCPPC Report or Board ofAppeals decision and
any oilier relevant infotmation and make a decisionconceming the application

F REVIEW AND REPORTING

This will be I1viewed on an ongoing basis in accordance with the Board of

policy
Educati6h S policy review process

affected schools
2 Periodipreports on the implementation of this policy including input from
and coinmunities will be reviewed by the Board

Policy Riston Adopted by Resolution No 653 97 November II 1997

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 EXHIBIT H

RECORDED AT REQUEST OF AND

WHEN RECORDED RETURN TO
Nextel Communications of the Mid Atlantic Inc
7055 Samuel MorseDrive Suite 100
Columbia MD 2W46
Attn Property Manager

MEMORANDUM OF AGREEMENT
MD 3194A IWoodfield
APN PN

This MEMORANDUM OF AGREEMENT is entered into on this day of

200 by the Board of Education of Montgomery County governing body of Montgomery

County Public Schools with an address at 850 Hungerford Drive RockvilIe Maryland 20850
hereinafter referred to as Owner or Landlord and Nextel Communications of the Mid
dfb NexteJ Communications with an office at 7055
Atlantic Inc a Delaware corporation a

Drive COlumbia 21046 hereinafter referred to as Nextel or

Samuel Morse Maryland
Tenant

1 Landlord and Tenant entered into a Lease Agreement for Telecommunications

dated of
200 effective upon full execution of the parties
Agreement as

l Effective Date for the purpose Nextel undertaking certain Investigations and Tests and upon
finding the Land appropriate for the purpose of installing operating and maintaining a
All of the foregoing is set forth in the
communications faiJity and other improvements
Agreement

2 The term of the years commencing on the earlier of the

Agreement is for five 5
commencement of construction of the Communications Facilities or the sixtieth 60th day
the date of this Agreement Term Commencement Date and terminating on the
following
fifth of the Commencement Date with one 1 successive five 5 year option to
anniversary
renew

3 The Land that is the subject of the Agreement is described in Exhibit A annexed
hereto The of the Land being leased to Tenant and all necessary access and utility
portion
easements the Premises are set forth in the Agreement

In witness whereof the parties have executed this Memorandum of Agreement as of the

day and year first written above

x
Initials

X
Initials

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l
 LAND1 0RD TENANT

Board of Education of Montgomery Nextel Cprfununications of the Mid antic

Courtty governing body of Montgomery Inc Delaware corporation
County Public Schools a Nextel Communications
NOT FOR EXECUTION EXHIBIT OT FOR EXECUTION EXHIBIT
ONLY ONLY

By By

Name Name

Title Title Vi President Site Development

ortheast Re on

Date

it

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t

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35
 STATEOFE

COUNTY OF tl

On before me
Notary Public personally appeared
personally known to me or proved to me on the basis of

satisfactory evidence to be the person whose name is subscribed to the within instrument and

acknowledged to me that they executed the same in their authorize apacity and that by their
signature on the instrument the person or the entity upon beh of which the person acted
executed the instrument

WITNESS my hand and official seal

Notary Public

My commission expires

STATE OF

COUNTY OF

On before Public
me
Notary personally appeared
Eugene M Noel ill personallx known to proved to me on the basis of
I
me or
satisfactory
evidence tobe the person whos name is s bscribed to the within instrument and
acknowledged

i that they executed the sa in their uthorized capacity and that by their signature on the
to me e

instrument the person the

or ntity upon behalf of which the person acted executed the
instrument

WITNESS my hand and official seal

j
J SEAL

If Notary Public

i My commission expires
t
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36
 EXHIBIT A

ISite Drawing Showing Property and Premises

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32
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