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HomeMy WebLinkAboutResolution - 2017-R0375 - Mobilitie Investments III - 10/12/2017Resolution No.2017-R0375 Item No.6.21 October 12,2017 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Lease Agreement by and between the City of Lubbock and Mobilitie Investments III, LLC,of Delaware,and related documents. Said Lease Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on October 12.2017 u^yv DANIEL M.POPE,MAYOR ATTEST: Rebecca Garza,City Secretar APPROVED AS TO CONTENT: Kelly Campbell,Executive DirDirector of Aviation APPROV fitchell Satterwhite,Tirst Assistant City Attorney vwxcdocs/RES.Agrmt-Mobilitie Investments III, LLC 09.25.2017 Contract 13161 Resolution No. 2017-RO375 STATE OF TEXAS § CITY OF LUBBOCK § AIRPORT AGREEMENT This Airport Agreement ("Agreement' or "Lease") is entered into by and between CITY OF LUBBOCK, TEXAS (`Lessor"), and MOBILITIE INVESTMENTS III, LLC, a Delaware limited liability company ("Lessee") as of the latter of the signature dates below ("Effective Date"). Lessor and Lessee are sometimes individually referred to herein as a "Party" and collectively as the "Parties". WITNESSETH: WHEREAS, Lessor owns and operates a public airport known as Lubbock Preston Smith International Airport ("Airport'), located at 5401 N. Martin Luther King Blvd, Lubbock, Texas; and WHEREAS, Lessee desires to design, build, install, operate, and maintain a multi -carrier capable, neutral host distributed antenna system and/or similar system ("DAS Network" or "Network") capable of accommodating wireless operators ("Carriers") at the Airport, and Lessor desires to have Lessee design, build, install, operate, and maintain the DAS Network at the Airport pursuant to the terms and conditions of this Agreement; and WHEREAS, Lessor desires to lease certain areas within, around, and on top of the Airport terminal building for use by Lessee for the installation and operation of the DAS Network, and once constructed and operational, Lessee intends to enter into separate license agreements with Carriers to access and use the DAS Network at the Airport (each, a "Carrier Agreement'); and NOW THEREFORE, for and in consideration of the covenants and conditions herein contained and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree to exercise the rights, powers, and privileges hereinafter set forth. ARTICLE ONE LEASED PREMISES 1.01 LEASE OF PREMISES. Lessor does hereby lease unto Lessee certain property located within, around, and on top of the Airport terminal building, including but not limited to (A) certain space containing approximately two hundred fifty (250) square feet as more particularly shown on Exhibit "A" attached hereto (the "Equipment Space"); and (B) MOBILITIE INVESTMENTS Ill, LLC Page l locations for the placement of antennas, small cell antennas, cabling, conduit, fiber and equipment in such locations within the Airport terminal building as Lessor and Lessee may mutually approve after good faith consultation, which locations shall be depicted in preliminary drawings and subsequently in as-builts which shall be incorporated into Exhibit "A" hereto (all such space, including the Equipment Space, collectively referred to as "Premises" or "Leased Premises" in this Agreement). 1.02 PERMITTED USE. Lessee may use the Premises for the installation, construction, use, maintenance, operation, repair, replacement, and upgrade of the communications fixtures and related equipment, conduits, wires, cables, cable trays, accessories for the DAS Network and any improvements related thereto as may be needed from time -to -time to provide for the continuous transmission and reception of Wireless Communication Services as defined in Section 5.06. ARTICLE TWO TERM 2.01 TERM. The initial term of this Agreement shall be for a period of ten (10) years, commencing on the first (1st) Carrier Rent Commencement Date as defined in Section 3.02. The Agreement shall be automatically extended for two (2) additional five (5) year periods unless Lessee gives written notice to Lessor not less than sixty (60) days prior to the expiration of the then -current term that Lessee will not renew the Agreement. The initial term and all extension terms shall collectively be referred to herein as the "Term". 2.02 HOLDOVER. In the event Lessee remains on location after the expiration of this Agreement, without any written renewal or extension of the Agreement, such holding over shall not be deemed as a renewal or extension of this Agreement, and may be terminated at any time by the Director of Aviation of Lessor. ARTICLE THREE PAYMENTS In consideration of the rights, powers, and privileges herein granted, and provided the corresponding events occur, Lessee shall pay to Lessor the following on or before the respective due date: Lessor will provide an IRS Form W-9 to Lessee. 3.01 UP FRONT PAYMENTS MOBILITIE INVESTMENTS III, LLC Page 2 Fifty Thousand and 00/100 Dollars ($50,000.00) within thirty (30) days after the Effective Date of this Agreement. One Hundred Thousand and 00/100 Dollars ($100,000.00) within thirty (30) days after the first (1 ") Carrier Agreement is fully executed. One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) within thirty (30) days after the second (2❑d) Carrier Agreement is fully executed. Two Hundred Thousand and 00/100 Dollars ($200,000.00) within thirty (30) days after the third (3`d) Carrier Agreement is fully executed. Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) within thirty (30) days after the fourth (4th) Carrier Agreement is fully executed. 3.02 MONTHLY NETWORK PAYMENTS For each Carrier that joins the Network pursuant to a Carrier Agreement, commencing on such Carrier's Rent Commencement Date, Lessee shall pay Lessor a monthly fee of One Thousand and 00/100 Dollars ($1,000.00). Each Carrier's "Rent Commencement Date" is the first (l') of the month following the date on which such Carrier commences commercial operation on the DAS Network. The obligation to make payments to Lessor for each Carrier during the Term shall expire or abate, as applicable, at such time that such Carrier discontinues participation in the DAS Network. Payments shall resume, if and when such participation resumes, and the monthly rent shall be accordingly adjusted based on the actual number of Carriers commercially operating on the Network during any given month of the Term. Lessee shall provide written notification to Lessor of Carrier discontinuation. 3.03 PAYMENTS. All monthly rental payments are due and payable to Lessor on or before the fifth (5th) day of each month during the Term of this Agreement and shall be made at the office of the Executive Director of Aviation, Lubbock Preston Smith International Airport, 5401 N. MLK Blvd., Unit 389, Lubbock, Texas 79403. Lessee shall pay Lessor a late payment charge of five percent (5%) of the total amount of rentals payable if payment of such rentals is not made by the fifteenth (151h) day of the month. ARTICLE FOUR RIGHTS RESERVED TO LESSOR The following rights are reserved unto Lessor. 4.01 AIRPORT SAFETY. Lessor reserves the right to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, together with the right to prevent Lessee from constructing or permitting construction of any building or other MOBILITIE INVESTMENTS III, LLC Page 3 structure which, in the reasonable opinion of Lessor, would limit the usefulness of the Airport or constitute a hazard to aircraft. 4.02 MAINTENANCE OF PUBLIC AREA. Lessor reserves the right, but shall not be obligated to Lessee (except as otherwise provided in this Agreement), to maintain and keep in repair the landing area of the Airport and all publicly -owned facilities of the Airport. Lessee will perform no maintenance activities outside the Leased Premises without the consent of the Lessor's Director of Aviation. 4.03 STANDARDS. Lessor reserves the right to establish reasonable standards for the construction, maintenance, alterations, repairs, additions, or improvements of the Leased Premises (excluding the DAS Network). This includes structural design, color, materials used, and maintenance of Lessee's Leased Premises (excluding the DAS Network). 4.04 TIME OF EMERGENCY. In the event of a war or national emergency, the Lessor shall have the right to lease the landing area and any other portion of the Airport to the United States for governmental use and, if such lease is executed, the provisions of this instrument, insofar as they are inconsistent with the provisions of the lease to the United States, shall be suspended. 4.05 RIGHT TO RELOCATE. Lessor shall have the right to change the locations of antennas with reasonable written notice to Lessee. Such relocated locations shall (i) be substantially the same size and dimensions as previous location, (ii) permit Lessee to provide at least the same quality and capacity of communication service as previously provided at the previous location, and (iii) shall be performed by Lessee. The cost of such relocation shall be borne by Lessor. Lessor shall have the right to approve any alterations to the concourse area of the Airport necessary for the installation of antennas, such approval not to be unreasonably withheld, conditioned, or delayed. 4.06 DEVELOPMENT OF AIRPORT. Lessee agrees that Lessor has the right to further develop or improve the Airport as Lessor sees fit, regardless of the desires or views of the Lessee, and without interference or hindrance therefrom. 4.07 SPONSOR'S ASSURANCE SUBORDINATION. This Agreement shall be subordinate to the provisions of any existing or future agreement between Lessor and the United States concerning the operation and maintenance of the Airport, the execution of which has been or may be required as a condition precedent to the expenditure of federal funds for the development of the Airport. Should the effect of such agreement with the United States be to take any of the property under lease or otherwise diminish the commercial value of this Lease, the Lessor shall not be held liable therefor. The Lessor covenants and agrees that it MOBILITIE INVESTMENTS III, LLC Page 4 will during the term of this Agreement operate and maintain the Airport as a public facility consistent with and pursuant to the Assurances given by the Lessor to the United States Government under federal law. 4.08 WAIVER. The failure of Lessor to require the performance by Lessee of any of the terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of the future performance of any such terms or conditions, and Lessee's obligation with respect to such future performance shall continue in full force and effect. ARTICLE FIVE RIGHTS & LIMITATIONS OF LESSEE 5.01 ACCESS. Lessee is herein granted the right of ingress to and egress from the Leased Premises at the Airport twenty-four (24) hours per day, seven (7) days per week. Such right of ingress and egress, however, shall be subject to all federal, state, and local laws, ordinances, rules, and regulations. Lessor shall provide free adequate on -site parking at the Airport to Lessee and the Carriers, and their respective employees, agents, and subcontractors, when such parties require or desire to be at the Airport in connection with this Agreement. 5.02 LESSEE'S DUTY TO REPAIR. Any property of the Lessor or any property for which the Lessor may be responsible, which is damaged or destroyed incident to the exercise of the privileges herein granted, other than normal wear and tear anticipated as a part of the Lease Agreement, which damage or destruction is occasioned by the negligence of Lessee, its employees, agents, servants, or licensees, shall be properly repaired or replaced by the Lessee to the reasonable satisfaction of the Lessor's Director of Aviation, or in lieu of such repair or replacement, Lessee shall, if so required by the Director of Aviation, pay Lessor money in an amount reasonable to compensate Lessor for the loss sustained or expense incurred by the Lessor as a result of the loss of, damage to, or destruction of such property. Lessee is only obligated under this section to the extent such repairs are not covered by the Lessor's insurance policy. 5.03 WARRANTY OF NO SOLICITATION. Lessee warrants that it has not employed any person employed by the Lessor to solicit or secure this Agreement upon any agreement for a commission, percentage, brokerage, or contingent fee. 5.04 DAS NETWORK. Lessee shall be responsible for designing, installing, operating, and managing the DAS Network at the Airport. Lessee will work closely with the Airport MOBILITIE INVESTMENTS III, LLC Page 5 during the design and installation stages of the DAS Network and shall obtain the Director's approval of the DAS Network locations prior to installation. Lessee shall be responsible for funding the associated capital costs of this project and contracting Carriers for the DAS Network at the Airport. 5.05 EXCLUSIVE RIGHT. Lessee's right to operate a DAS Network at the Airport shall be exclusive. However, in no circumstance will the DAS Network hinder, eliminate, or obstruct the Lessor's existing (as of the Effective Date) Wi-Fi connectivity or radio systems. Lessor has not granted and will not grant (directly or indirectly), after the Effective Date, a lease, license, or any other right to any third party for use of any portion of the Airport for the provision of Wireless Communication Services. Lessor shall ensure that no other party grants, after the Effective Date, a lease, license, or any other right to any third party for use of any portion of the Airport for the provision of Wireless Communication Services. As used herein, the term "Wireless Communication Services" shall mean and refer to any wireless, voice, data, messaging, or similar type of wireless services now or in the future offered to the public in general using spectrum radio frequencies licensed by the Federal Communications Commission or any successor agency. 5.06 SUBLEASE. Lessee shall have the right to sublease and/or license for the use of the DAS Network to Carriers as provided herein. ARTICLE SIX GENERAL CONDITIONS This Lease is granted subject to the following provisions and conditions. Failure of the Lessee to comply with any requirement of Article Six shall be subject to Section 8.03(6). 6.01 RULES AND REGULATIONS. Lessor reserves the right to issue through its Director of Aviation, and Lessee and its officers, agents, employees, and servants shall obey, such reasonable rules, regulations, and procedures for activities and operations conducted at the Airport ("Rules") as deemed necessary to protect and preserve the safety, security, and welfare of the Airport and all persons, property, and facilities located thereon, provided the Rules shall not be enforceable against Lessee (or its officers, agents, employees, and servants) to the extent they (i) are not generally applicable to all tenants and licensees of the Airport, (ii) increase Lessee's cost to occupy the Premises, (iii) diminish Lessee's rights under this Agreement, or (iv) reduce Lessor's obligations under this Agreement. In the event there is a conflict between the provisions of this Agreement and the Rules, the provisions of this Agreement shall govern. MOBILITIE INVESTMENTS III, LLC Page 6 Lessee shall pay for all licenses, permits, clearances, rights -of -way, and other matters necessary to conduct business. Lessee shall pay all fees, taxes, and charges assessed under state, local, or federal statutes or ordinances insofar as they are applicable. 6.02 ADDITIONS, IMPROVEMENTS, OR ALTERATIONS. Lessee shall not make, permit, or suffer any additions, improvements, or alterations to the Leased Premises which constitute any major structural change without first submitting plans and specifications for such additions, improvements, or alterations to the Lessor's Director of Aviation and securing prior consent from the Director of Aviation (such consent not to be unreasonably withheld, conditioned, or delayed). Any such additions, improvements, or alterations made with the consent of the Director of Aviation shall be solely at the expense of the Lessee and such additions or improvements shall be subject to all terms and conditions of this Agreement. Lessee has the right to modify, supplement, replace, upgrade and/or otherwise make non- structural alterations within the Equipment Space without the consent of Lessor, and Lessee has the right to modify, supplement, replace, upgrade, and expand all other portions of the DAS Network with the prior consent of Lessor, which consent will not be unreasonably withheld, conditioned or delayed. Lessee further has the right to add, modify, and/or replace, from time -to -time, the DAS Network equipment, cabling, and conduit in order to be in compliance with any current or future federal, state, or local mandated application, including but not limited to, emergency 911 communication services.. Lessee has the right to undertake appropriate means to secure the Premises at Lessee's expense. Lessee agrees to comply with all applicable governmental laws, rules, statutes, and regulations relating to construction, installation, maintenance, and use of the DAS Network in the Airport. The Lessee agrees to hold Lessor harmless from all Mechanic's and Materialman's Liens arising from any construction, additions, improvements, repairs, or alterations effected by the Lessee. Lessor covenants and agrees that no part of the DAS Network constructed, erected, or placed on the Premises by Lessee (or any equipment or improvements owned by a Carrier) will become, or be considered as being affixed to or a part of, the Premises, it being the specific intention of Lessor that all improvements of every kind and nature constructed, erected, or placed by Lessee or its Carriers on the Premises will be and remain the property of Lessee (or its Carriers, as applicable). 6.03 ADVERTISING. Advertising may be placed at the Airport by Lessee with any party having the right to sell, rent, or offer Airport terminal advertising space. The Lessee will erect no signage at the Airport without the prior written consent of the Lessor's Director of Aviation. Said consent will not be unreasonably withheld. MOBILITIE INVESTMENTS III, LLC Page 7 6.04 LIENS PROHIBITED. The Lessee shall not bind or attempt to bind the Lessor for payment of any money in connection with the construction, installations, alterations, additions, or repairs on the Leased Premises or any Lessee's equipment or facilities located on the Leased Premises, and Lessee shall not permit any mechanic's, materialman's, or contractor's liens to arise against the Leased Premises or any improvements thereon, or any equipment, machinery, or fixtures thereon belonging to the Lessor, and Lessee expressly agrees that it will keep and save the Premises and the Lessor harmless from all costs and damages resulting from any liens of any character created or that may be asserted through any act or thing done by Lessee. In the event that, as a result of Lessee's actions, any mechanic's lien or other lien or order for payment shall be filed against the Leased Premises or improvements thereon, or against Lessor -owned property located thereon during the initial term hereof, or during any subsequent extension, Lessee shall defend on behalf of the Lessor, at Lessee's sole cost and expense, any action, suit, or proceeding which may be brought thereon or for the enforcement of such lien or order. Failure of the Lessee to comply with any requirement of this section after having received thirty (30) days written notice thereof shall be cause for termination of this Agreement by the Lessor. 6.05 INSPECTION OF LEASED PREMISES. Lessee agrees that the Leased Premises will be kept reasonably clean and free of all debris and other waste matter. Lessor, acting by and through the Director of Aviation or other designated representative, shall have the right to conduct inspections of the Leased Premises at all reasonable times to ensure that fire, safety, and sanitation regulations and other provisions contained in this Agreement are being adhered to by the Lessee. 6.06 CUSTODIAL AND MAINTENANCE SERVICES. The Lessee shall, at its own cost and expense, maintain the Equipment Space in a safe, clean, and presentable condition reasonably free of trash and debris and consistent with good business practices. Lessee shall repair all damages to Leased Premises caused by its employees, patrons, or business operations thereon; shall perform all maintenance and repair to the Leased Premises (excluding structural portions of the Leased Premises not installed by Lessee). The Lessor shall, at its own cost and expense, maintain non -rented portions of the Airport, including the roof, foundation, and structural floors and slabs, and load bearing walls. 6.07 TRASH, GARBAGE, REFUSE, ETC. Lessee shall provide a complete and proper arrangement for the adequate sanitary handling and disposal, away from the Airport, of all trash, garbage, and other refuse produced as a result of Lessee's business operations on the Leased Premises. MOBILITIE INVESTMENTS III, LLC Page 8 6.08 UTILITIES. Lessor shall, at Lessor's sole cost and expense, furnish electricity and other utilities necessary to install and operate the Network and Lessee's and Carrier's respective equipment throughout the Term. Lessee and the Carriers shall have the right to use and consume such utilities in connection with the Network and the operation of Lessee's and such Carriers' equipment installed within the Airport; provided, however, Lessee shall reimburse Lessor for metered utilities consumed by Lessee's and Carrier's equipment within the Equipment Space or other areas that may need to be metered due to excessive consumption from the operation of the DAS system. Additional charges for extraordinary usage of electricity or other utilities shall apply if greater than the basic utilities provided. Lessee shall have the right, with written approval of Lessor, to upgrade utility service at Lessee's expense. Any charges payable by Lessee under this Agreement, such as utilities, shall be billed by Lessor within one (1) year from the end of the calendar year in which the charges were incurred; any charges beyond such period shall not be billed by Lessor, and shall not be payable by Lessee. 6.09 TAXES, FEES, ASSESSMENTS AND LICENSE. The Lessee agrees to pay promptly when due all federal, state, and local government taxes, license fees, and occupation taxes levied on either Lessee's leasehold improvements at the Leased Premises or on the business conducted on the Leased Premises or on any of Lessee's property used in connection therewith, except as provided herein. Taxation is subject to legal protest by Lessee in accordance with the provisions of the taxing authority whose levy is questioned. Any protest is at the sole expense of Lessee. Delinquency in payment of such obligations after any protest has been settled shall, at the option of the Lessor, be cause for immediate termination of this Lease. 6.10 APPROVALS AND DESIGN CONTINGENCY. Lessor agrees that Lessee's ability to use the Premises is contingent upon the suitability of the Premises and the Airport for Lessee's Permitted Use and Lessee's ability to obtain and maintain all governmental licenses, permits, approvals, or other relief required of or deemed necessary or appropriate by Lessee for its use of the Premises, including, without limitation, applications for zoning variances, zoning ordinances, amendments, special use permits, and construction permits (collectively "Government Approvals"). Lessor authorizes Lessee to prepare, execute and file all required applications to obtain Government Approvals for Lessee's permitted use under this Agreement and agrees to reasonably assist Lessee at and with no cost to Lessor with such applications and with obtaining and maintaining the Government Approvals. In addition, Lessee shall have the right to initiate the ordering and/or MOBILITIE INVESTMENTS III, LLC Page 9 scheduling of necessary utilities. Within thirty (30) days from the Effective Date, Lessor shall provide Lessee with a complete set of as -built drawings for the Airport. ARTICLE SEVEN INDEMNIFICATION. INSURANCE. AND WARRANTIES 7.01 INDEMNIFICATION. Lessee covenants and agrees to indemnify, defend, and hold Lessor, its authorized agents, representatives, officers, elected officials, and employees, individually and collectively harmless from and against any and all liability for fines, claims, suits, demands, actions, or causes of action of any nature to the extent arising from any acts or omissions of Lessee, its agents, and employees under this Agreement, except to the extent attributable to the negligence or willful misconduct of Lessor and/or its employees, agents, or contractors. To the extent permitted by law, Lessor agrees to indemnify, defend, and hold Lessee, its affiliates, and each of their respective agents, officers, employees, directors, shareholders, and partners harmless from and against any and all injury, loss, damage, or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys' fees and court costs) arising directly or indirectly out of or resulting from any acts or omissions of Lessor, its agents, contractors, representatives, officers, elected officials, and employees, except to the extent attributable to the negligence or willful misconduct of Lessee and/or its employees, agents or independent contractors. Indemnification — Environmental Harm. Without limiting any provisions of this Agreement, Lessee shall also defend, indemnify, and hold Lessor and its respective officers, employees, elected officials, and agents harmless from and against all suits, actions, claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses (including but not limited to reasonable attorney's and consultant's fees, court costs and litigation expenses) to the extent arising out of: Any actual contamination by hazardous substances of the Leased Premises caused by Lessee or its agents or contamination by hazardous substances of the Airport caused by Lessee or its agents; 2. The presence, disposal, release or threatened release of hazardous substances by Lessee or its agents at the Airport that is on, from, or affects the soil, air, water, vegetation, buildings, personal property, persons, animals, or otherwise; Any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to the use of hazardous substances by Lessee or its agents at the Airport; or 4. Any violation by Lessee of any Environmental Laws that affects the Airport. MOBILITIE INVESTMENTS III, LLC Page 10 7.02 INSURANCE. Lessee shall maintain at all times, at its sole expense, Liability Insurance with an insurance underwriter authorized to do business in the State of Texas, against claims of bodily injury and property damage resulting from Lessee's business activities at the Airport pursuant to this Agreement. The amount of coverage shall not be less than the following: Commercial General Liability: $1,000,000 Combined Single Limit; per Occurrence Automobile Liability: $1,000,000 Combined Single Limit; per Occurrence Umbrella Excess Liability: $4,000,000 per Occurrence Workers' Compensation: Statutory Amounts or Occupational Medical and Disability Employers' Liability: $1,000,000 Endorsements (Copies Required): City of Lubbock as additional insured on Auto/General Liability on a primary and non-contributory basis. Waiver of subrogation in favor of the City of Lubbock on all coverages A current certificate of insurance and copies of the endorsements shall be provided by Lessee to the Director of Aviation of Lessor prior to the beginning of the term of this Agreement. The insurance shall also contain a provision requiring the insurer to give the Lessor written notice of cancellation or of any material change in coverage at least thirty (30) days in advance of the effective date of such cancellation or material change. Lessee and Lessor (as allowed by law) each mutually release each other from liability and waive all right of recovery against the other for any property loss or damage covered by its own property insurance policy, and in the event of such insured loss, it is agreed that neither Party's insurance company shall have a subrogation claim against the other. Each Party shall obtain special endorsements required by its insurer to allow such waiver of rights of subrogation, but the failure to obtain same shall not impair the effectiveness of this waiver and/or release between the Parties. 7.03 INTERFERENCE. Lessor shall not allow third parties operating at the Airport to install any equipment in the Airport that would interfere with or restrict the operation of the Network. Lessor agrees should any interference be encountered in the Network operation as a result of third party's equipment in, on, or about the Airport, Lessor will require such party to eliminate such interference in a timely manner, not to exceed twenty-four (24) hours from third party's receipt of written notice from Lessor. The request for such MOBILITIE INVESTMENTS III, LLC Page 11 removal of the interference shall not be required, if such removal prevents the Airport from operating as an air passenger facility or compromises Airport safety or security. Lessor agrees should any interference be encountered in the Network operation as a result of Lessor's equipment in, on, or about the Airport, Lessor will use good faith efforts to resolve such interference within a reasonable time frame. In the event of any interference that continues beyond the cure periods stated herein, notwithstanding anything to the contrary contained in this Agreement, Lessee may (i) immediately terminate this Agreement, upon written notice to Lessor, without further liability and/or (ii) pursue radio frequency interference remedies before the FCC against the interfering party. Lessee will also have the right, in addition to any other rights it may have at law or in equity, to elect to enjoin such interference. For the purposes of this Agreement, "interference" may include, but is not limited to, any use on the Airport or surrounding areas that causes electronic, physical, or obstruction interference with, or degradation of the communications signals to or from the Communication Facility. 7.03 WARRANTIES. Lessee and Lessor each acknowledge and represent that it is duly organized, validly existing, and in good standing and has the right, power, and authority to enter into this Agreement and bind itself hereto through the officer or representative set forth as signatory for the Party below. Lessor represents, warrants, and agrees that: (i) Lessor owns the Airport and no other party has approval rights to this Agreement; (ii) Lessor grants to Lessee sole, actual, quiet, and peaceful use, enjoyment, and possession of the Premises; (iii) Lessor's execution and performance of this Agreement will not violate any laws, ordinances, covenants, or the provisions of any mortgage, lease, or other agreement binding on Lessor, (iv) if Lessor's interest in the Airport or underlying real property is a lessee's interest in a ground lease, (a) nothing in the ground lease prevents Lessor from performing its obligations or assuming liabilities as set forth in this Agreement, and Lessor covenants to take no action or fail to take any required action under the terms of such ground lease that would disturb Lessee's possession of the Premises or impair its rights under this Agreement, and (b) the term of any such ground lease permits a minimum occupancy period for Lessor for no less than the initial term of this Agreement, and all extension terms. LESSEE MAKES NO EXPRESS WARRANTY REGARDING THE NETWORK AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS THEREFOR. ARTICLE EIGHT TERMINATION, CANCELLATION MOBILITIE INVESTMENTS III, LLC Page 12 8.01 TERMINATION. This Lease shall terminate at the end of the Term. Lessee shall have no further right or interest in any of the Premises or improvements hereby demised, except as provided herein. 8.02 TERMINATION BY LESSEE. This Lease shall be subject to cancellation by Lessee upon the occurrence of any one or more of the following events: 1. The permanent abandonment of the Airport by the Lessor as an air terminal. 2. The lawful assumption by the United States Government, or any authorized agency thereof, of the operation, control, or use of the Airport, or any substantial part or parts thereof, in such a manner that substantially restricts Lessee for a period of at least ninety (90) days from operating thereon. 3. The issuance by any court of competent jurisdiction of an injunction in any way preventing or restraining the use and operation of the Airport for a period of at least ninety (90) days. 4. The default of the Lessor in the performance of any covenant or agreement herein required to be performed by the Lessor and the failure of the Lessor to remedy such default for a period of sixty (60) days after receipt from Lessee of written notice to remedy the same. 5. Lessor's failure to provide access pursuant to Section 5.01 within twenty-four (24) hours after receipt of written notice of such failure. 6. If Lessee is unable to obtain, or maintain, any required approval(s) or the issuance of a license or permit by any agency, board, court, or other governmental authority necessary for the construction, use, or operation of the Network as now or hereafter intended by Lessee; or if Lessee determines, in its sole discretion, that the cost of obtaining or retaining the same is commercially unreasonable. 7. If at any time prior to construction of the Network, Lessee determines that construction and installation of the Network is not feasible or suitable for Lessee, in its sole discretion. Lessee may exercise such right of termination by giving sixty (60) days advance written notice to the Lessor at any time after the lapse of the applicable periods of time and this Lease shall terminate as of the sixty first (61 ") day after such notice is given. Rental due hereunder shall be payable only to the effective date of said termination. It is agreed that failure to declare this Lease terminated upon the default of Lessor for any of the reasons set forth above shall not be construed as a waiver of any of the Lessee's rights hereunder or otherwise bar or preclude Lessee from declaring this Agreement cancelled as a result of any subsequent violation of any of the terms or conditions of this Agreement. MOBILITIE INVESTMENTS III, LLC Page 13 8.03 TERMINATION BY LESSOR. This Lease shall be subject to cancellation by Lessor after the happening of one or more of the following events: 1. The taking by a court of competent jurisdiction of Lessee and its assets pursuant to proceedings brought under the provisions of any federal reorganization act. 2. The appointment of a receiver for Lessee's assets. 3. The divestiture of Lessee's assets by other operation of law. 4. The abandonment by Lessee of the DAS Network (not due to a Force Majeure) at the Airport for a period of three (3) months or more. 5. The failure by Lessee to pay any rentals or other charges hereunder and the failure of Lessee to remedy such failure for a period of ten (10) business days after receipt from the Lessor's Director of Aviation of written notice to remedy the same. 6. The default by Lessee in the performance of any covenant or agreement herein required to be performed by Lessee and the failure of Lessee to remedy such default for a period of thirty (30) days after receipt from the Lessor's Director of Aviation of written notice to remedy the same; provided, however, no failure will be deemed to exist if Lessee has commenced to cure the default within such 30-day period and provided such efforts are prosecuted to completion with reasonable diligence. 7. The lawful assumption by the United States Government, or any authorized agency thereof, of the operation, control, or use of the Airport, or any substantial part or parts thereof, in such a manner as to substantially restrict Lessee for a period of at least six (6) months from operating thereon. Lessor may exercise such right of termination by giving ten (10) days advance written notice to the Lessee at any time after the lapse of the applicable periods of time, and this Lease shall terminate as of the eleventh (llth) day after such notice is given. Once Agreement is terminated, Lessor's agents may enter upon the Leased Premises and take immediate possession of the same and remove Lessee's effects. Any rental due hereunder shall be payable to said date of termination. It is agreed that failure to declare this Lease terminated upon the default of Lessee for any of the reasons set forth above shall not be construed as a waiver of any of the Lessor's rights hereunder or otherwise bar or preclude Lessor from declaring this Agreement cancelled as a result of any subsequent violation of any of the terms or conditions of this Agreement. 8.04 REPLACEMENT AFTER DAMAGE. It is agreed between the parties hereto that in the event the Leased Premises are damaged by fire or other accidental cause during the initial term of this Lease so as to become totally or partially untenantable, the Lessor shall have MOBILITIE INVESTMENTS III, LLC Page 14 the option to restore or not restore the Premises to their former condition. Lessor shall give Lessee notice in writing of Lessor's election to restore or not restore the Premises within sixty (60) days of the occurrence of such damage. If the Lessor elects to restore the Premises, the Lessor shall proceed with due diligence and there shall be an abatement of the rent until repairs have been made for the time and to the extent for which the Premises, or part thereof, have been untenantable. Should the Lessor exercise the option to not restore the Premises, the lease of such untenantable portion of the Premises shall cease and terminate effective on the date of receipt of Lessor's written election to not restore the Premises; provided, however if Lessor makes such election, Lessee may, within thirty (30) days after receipt of such written election, prior written notice to Lessor that Lessee's requests to restore the Premises at its cost and expenses, and in such case, (i) Lessor's termination may be null and void, (ii) Lessee shall restore the Premises, and (iii) there shall be an abatement of the rent until repairs have been made for the time and to the extent for which the Premises, or part thereof, have been untenantable. 8.05 CONFLICT OF INTEREST. The Lessee acknowledges it is informed that Texas law prohibits contracts between the City of Lubbock and its "officers" and "employees," and the prohibition extends to officers and employees of the City of Lubbock agencies, such as Lessor -owned utilities, and certain City of Lubbock boards and commissions, and to contract with any partnership, corporation, or other organization in which the officers or employees have a substantial interest. Lessee certifies (and this Agreement is made in reliance thereon) that neither the Lessee nor any person having an interest in this Agreement is an officer or employee of the City of Lubbock or any of its agencies, boards, or commissions. 8.06 REMOVAL OF LESSEE'S PROPERTY. Upon all amounts due the Lessor from Lessee having been paid in full, the Lessee shall, within sixty (60) days after the termination of this Lease, whether such termination comes upon expiration of the initial term, any extension, or otherwise under any provision of this Lease, remove from the Leased Premises all of Lessee's property. Notwithstanding anything to the contrary contained in this Agreement, Lessee shall not be required to remove any structural steel, foundations, or underground utilities, fiber-optic cable, coaxial cable, conduit or related equipment, and all such materials and equipment shall be deemed abandoned and shall become the property of Lessor (and not subject to additional rental charges under Section 8.07). Lessee shall restore the Premises to the original condition, normal wear and tear, and damage by casualty accepted. 8.07 OWNERSHIP. Unless a renewal agreement is executed, property that Lessee was obligated to remove under Section 8.06 that is left on the Premises after sixty (60) days from the date of termination of this Agreement shall be deemed abandoned and will MOBILITIE INVESTMENTS III, LLC Page 15 become the property of the Lessor, and may be disposed of as the Lessor sees fit, without any liability to the Lessee to account for the proceeds of any sale; and the Lessor, at its option, may require Lessee to remove such abandoned property and may charge rent from the date of expiration or termination of this Agreement through the day of final removal of the property, or of notification to the Lessee of the abandonment of the property and taking by the Lessor, as the case may be. In the event Lessor terminates this Agreement for cause as contained in 8.03 above, or if Lessee discontinues operations at any time prior to expiration, the DAS Equipment shall not be removed until Lessee has paid all amounts due to Lessor. 8.08 TERMINATION OF LEASE AND SURRENDER OF LEASED PREMISES. The Lessee covenants and agrees that at the expiration of the term of this Lease, or upon earlier termination as provided elsewhere in this Agreement, Lessee will quit and surrender the Leased Premises and the improvements in good condition, reasonable wear and tear and damage by casualty accepted, all in accordance with and subject to Section 8.07. ARTICLE NINE MISCELLANEOUS PROVISIONS 9.01 NOTICES. Notices to the Lessor required or appropriate under this Agreement shall be deemed sufficient if in writing and hand delivered or mailed, registered, certified mail, postage prepaid, or sent via overnight courier addressed to: Director of Aviation Lubbock Preston Smith International Airport 5401 N. MLK Blvd., Unit 389 Lubbock, Texas 79403 Notices to the Lessee shall be deemed sufficient if in writing and hand delivered or mailed, registered, certified mail, postage prepaid, or sent via overnight courier and addressed to: Mobilitie Investments III, LLC Attn: Legal Department Re: Lubbock Airport 660 Newport Center Drive, Suite 200 Newport Beach, California 92660 Notices will be deemed effective when received, refused, or returned undelivered. MOBILITIE INVESTMENTS III, LLC Page 16 9.02 NON -ARBITRATION. Lessor and Lessee each reserve the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. 9.03 ENTIRE AGREEMENT. This Lease constitutes the entire Agreement between the Lessor and Lessee, and any other written or parole agreement with the Lessor is expressly waived by Lessee. 9.04 LIMITATION OF LIABILITY. Except for the indemnity obligations for third party claims set forth in this Agreement, and otherwise notwithstanding anything to the contrary in this Agreement, Lessee and Lessor each waives any claims that each may have against the other with respect to consequential, incidental or special damages, however caused, based on any theory of liability. 9.05 GOVERNING LAW AND ATTORNEYS FEES. This Agreement will be governed by the laws of the state of Texas. The prevailing Party in any action or proceeding in court or mutually agreed upon arbitration/mediation proceeding to enforce the terms of the Agreement shall be entitled to receive its reasonable attorneys' fees, including court, consultant, and expert costs, fees, and expenses from the non -prevailing Party. 9.06 FORCE MAJEURE. Neither party shall be liable for failure to perform its obligations under this Agreement due to acts of God, the failure of equipment or facilities not owned or controlled by a party (including, but not limited to, utility service), government order or regulation or any other circumstances beyond the reasonable control of the party with the performance obligation. Such circumstances shall include Lessor or third party denial of Lessee access to the Network or other facilities or rights -of -way essential to serving the Premises. 9.07 SEVERABILITY. If any provision of this Agreement is held invalid, illegal, or unenforceable by a court or agency of competent jurisdiction, (a) the validity, legality and enforceability of the remaining provisions of this Agreement are not affected or impaired in any way if the overall purpose of this Agreement is not rendered impossible and the original purpose, intent, or consideration is not materially impaired; and (b) the Parties shall negotiate in good faith in an attempt to agree to another provision (instead of the provision held to be invalid, illegal, or unenforceable) that is valid, legal, and enforceable and carries out the Parties' intentions to the greatest lawful extent. MOBILITIE INVESTMENTS III, LLC Page 17 EXECUTED this 12th day of October , 2017. The City of Lubbock, Lessor BY: DANIEL M. POPE, MAYOR ATTEST: Reb cca Garza, City Secretary 0 APPROVED AS TO CONTENT: Kelly Campbell, Executive Director of Aviation APPROVED S TO Assistant City Attorney Mobilitie Investments III, LLC, Lessee By: Mobilitie Management, LLC, Manager Name: Title: CIE() Date: 011yo 11-1 MOBILITIE INVESTMENTS III, LLC Page 18 EXHIBIT A LEASED PREMISES EQUIPMENT SPACE The Equipment Space is approximately two hundred fifty (250) feet of space located on the Ground Level of the Airport on the East end of the Terminal Building. Lessee intends to, and Lessor shall permit Lessee to, install a locking gate around such Equipment Space and a 4' x 10' gated entryway opening to the non -secure side of the Terminal Building. Figure 1. Equipment Space in relation to Airport "Terminal Building (outlined in red below) N 4 t. 7t - � •.,, 1�" L� N c� � •IpltMreelei:• P p F A `' rnytt�l' a Ft 1 I t Inw.~ E ..� �' �•" �V►�i N 14 i s � t � iKM�sgr:i i.�lr rt to t� \..tom _ � � ���M? •�� �t�.�l � 1� ' W 'p ` �E! let EXHIBIT A Page 1 CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos. 1- 4 and 6 if there are interested parties. Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. OFFICE USE ONLY CERTIFICATION OF FILING Certificate Number: 2017-175016 Date Filed: 03/06/2017 Date Acknowledged: 09/27/2017 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. Mobilitie Investments III, LLC. Newport Beach, CA United States 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 17-13161-SS neutral -host distributed antenna system provider 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling I Intermediary Mobilitie Investments III, LLC. Newport Beach, CA United States X 5 Check only if there is NO Interested Party. ❑ 6 AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. Signature of authorized agent of contracting business entity AFFIX NOTARY STAMP / SEAL ABOVE Sworn to and subscribed before me, by the said this the day of 20 , to certify which, witness my hand and seal of office. Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277 CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos. 1- 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. 2017-175016 Mobilitie Investments III, LLC, Newport Beach, CA United States Date Filed: 03/06/2017 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 17-13161-SS neutral -host distributed antenna system provider 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling I Intermediary Mobilitie Investments III, LLC. Newport Beach, CA United States X 5 Check only if there is NO Interested Party. ❑ 6 �z — — ` — — ' ' 1 swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. rA MELISSA ANN WILLIAMS Commission # 2133409 C Mi Notary Public - California i a Orange County M Comm, Expires Nov 9, 2019 Signature of authorized agent of contracting business entity AFFIX NOTARY STAMP / SEAL ABOVE y Sworn t and subscribed before me, by the said / i//�%f &A::�/ s this the day of , 20, to certify which, witness my hand and seal of office. ",f,/Xj Signature of officer administering oath Printed name of officer administering oath Title of over administering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277