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HomeMy WebLinkAboutMetroPCS NY, LLC - Cell Tower at PDRESOLUTION 2009-361 ADOPTED DOC ID: 4979 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2009-361 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWTq BOARD ON MAY 5, 2009: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute the Communications Site Lease Agreement between the Town of Southoid and MetroPCS New York~ LLC, regarding a cell tower site located at the Town of Southold Polic~ Department, for a term of 60 months, subject to the approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Vincent Orlando, Councilman SECONDER: Albert Krupski Jr., Councilman AYES: Ruland, Orlando~ Krupski Jr., Wickham, Evans, Russell COMMUNICATIONS SITE LEASE AGREEMENT THIS COMMUNICATIONS SITE LEASE AGREEMENT ("Lease Agreement") dated as of _, is made by and between MetroPCS New York, LLC, a Delaware limited liability company ("Lessee") and Town of Southold, a municipal corporation of the State of New York ("Lessor"). RECITALS This Lease Agreement is entered into based upon the following facts, cimumstances and understandings: A. Lessor owns certain real property legally described in Exhibit "A" attached hereto and commonly known as Town of Southold Police Department, 41405 Route 25, Peeonic, NY 11958 Assessor's Parcel Number District 1000, Section 75, Block 5, Lot 014.001 ("Lessor's Real Property"). Lessee desires to lease a portion of Lessor's Real Property with any necessary easements over other portions of Lessor's Real Property and/or shared use of Lessor's easements over other real property necessary for Lessee's access and utilities to the leased area (altogether the "Premises"), as described on Exhibit "B" attached hereto. Lessor represents and warrants that it has the right to grant the rights set forth herein and that it has full rights of ingress to and egress from the Premises from a public roadway. B. Lessee desires to construct and operate a wireless communications site at the Premises. C. Based on the premises set forth herein and on the terms and conditions set forth below, Lessor is willing to lease the Premises to Lessee for Lessee's proposed use subject to the terms and conditions of this Lease Agreement. WHEREFORE, in consideration of the Premises set forth above and the terms and conditions set forth herein, the parties, intending to be legally bound, hereto agree as follows: 1. Grant of Lease. Lessor hereby leases to Lessee the Premises for Lessee's proposed use, subject to the following terms and conditions for the Term. 2. Permitted Uses. The Premises may be used by Lessee for the operation of a wireless communications site. Under this Lease Agreement, Lessee may install, place, use and operate on the Premises such antennas, radio transmitting and receiving equipment, conduits, wires, batteries, back-up generators, utility lines and facilities, supporting structures, storage facilities, telephone facilities, microwave equipment, and related equipment (collectively "Lessee's Facilities") as Lessee deems necessary for the operation of its wireless communications site at the Premises. Further,. Lessee may perform construction, maintenance, repairs, additions to, and replacement of Lessee's Facilities as necessary and appropriate for its ongoing business and has the right to do all work necessary to prepare, modify and maintain the Premises to accommodate Lessee's Facilities and as required for Lessee's communications operations at the Premises. Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 1 of 15 3. Conditions Precedent: Prior Approvals. This Lease Agreement is conditioned upon Lessee obtaining all govcrnmantal licenses, permits and approvals enabling Lessee to construct and operate wireless communications facilities on the Premises without conditions which are not standard or typical for premises where wireless communications facilities are located. Lessor agrees to cooperate with Lessee's reasonable requests for Lassor's signatures as real property owner on permit applications, for allowing site inspections by governmental agencies required in connection with reviewing permit applications, and for assistance in obtaining such necessary approvals, provided that such cooperation and assistance shall be at no expense to Lessor. 4. Term. The term of this Lease Agreement ("Term") shall be five (5) years commencing on the date Lessee begins construction of Lessee's Facilities on the Premises or eighteen (18) months from the date of full execution of this Lease Agreement, whichever occurs first ("Commencement Date"). Lessee shall promptly deliver written notice to Lessor of the Commencement Date. Lessee shall have the right to extend the Term of this Lease Agreement for four (4) additional terms (each a "Renewal Term") of five (5) years each. The terms and conditions for each Renewal Term shall be the same terms and conditions as in this Lease Agreement, except that the Rent shall be increased as set forth hereinbelow. This Lease Agreement shall automatically be extended for each successive five (5) year Renewal Term unless Lessee notifies Lessor in writing of Lessee's intention not to extend this Lease Agreement at least thirty (30) days prior to the expiration of the first Term or any Renewal Term. 5. Rent. Within forty-five (45) days of the Commencement Date, Lessee shall pay Lessor, as rent, the sum of Two Thousand Seven Hundred Fifty Dollars and no/00 ($2,750.000 ("Rent") per month. Rent shall be payable on the first day of each month, in advance, to Lessor or Lessor's alternate payee specified in Section 22, Notices and Deliveries. If the Commencement Date of this Lease Agreement is other than the first day of a calendar month, Lessee may pay on the first day of the Term the prorated Rent for the remainder of the calendar month in which the Term commences, and thereafter Lessee shall pay a full month's Rent on the first day of each calendar month, except that payment shall be prorated for the final fractional month of this Lease Agreement, or if this Lease Agreement is terminated before the expiration of any month for which Rent should have been paid. Rent shall be adjusted as of the fifth (5~) anniversary of the Commencement Date of the Term and of any five (5) year Renewal Term by an increase of fifteen pement (15%) of the Rent paid during the previous Term or five (5) year Renewal Term. 6. Due Diligence Contingency and Pre-Commencement Date Access to Premises. Lessee shall have the right (but not the obligation) at any time following the full execution of this Lease Agreement and prior to the Commencement Date, to enter the Premises for the purpose of making necessary inspections, taking measurements and conducting engineering surveys (and soil tests where applicable) and other reasonably necessary tests to determine the suitability of the Premises for Lessee's Facilities ("Due Diligence"), and for the purpose of preparing the Premises for the installation or construction of Lessee's Facilities. During any Due Diligence activities or pre-construction work, Lessee shall have insurance which covers such activities as set forth in Sectionl6, Insurance. Lessee will notify Lessor of any proposed tests, measurements or pre-construction work and will coordinate the scheduling of such activities with Lessor. If in the course of its Due Diligence Lessee determines that the Premises arc unsuitable for Lessee's contemplated use, then Lessee shall have the right to terminate this Lease Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 2 of 15 Agreement prior to the Commencement Date by delivery of written notice thereof to Lessor as set forth in Section 13, Termination. 7. Ongoing Access to Premises. Throughout the Term and any Renewal Term of this Lease Agreement, Lessee shall have the right of access without escort to the Premises for its employees and agents twenty-four (24) hours a day, seven (7) days per week, at no additional charge to Lessee. In exercising its right of access to the Premises herein, Lessee agrees to cooperate with any reasonable security procedures utilized by Lessor at Lessor's Real Property and further agrees not to unduly disturb or interfere with the business or other activities of Lessor or of other tenants or occupants of Lessor's Real Property. Lessor shall maintain all existing access roadways or driveways extending from the nearest public roadway to the Premises in a manner sufficient to allow for Lessee's access to the Premises. Lessor shall be responsible for maintaining and repairing such roadways and driveways at Lessor's sole expense, except for any damage caused by Lessee's use of such roadways or driveways. If Lessee causes any such damage, Lessee shall promptly repair the same at its sole expense. Except those constructed by Lessee, Lessor, not Lessee, shall be responsible for the maintenance and compliance with laws of all towers and structures located on the Premises, including compliance with Part 17 of the Federal Communications Commissions' Rules. 8. Lessee's Work~ Maintenance and Repairs. All of Lessee's construction and installation work at the Premises shall be performed at Lessee's sole cost and expense and in a good and workmanlike manner. Lessee shall submit copies of the site plan and specifications to the Lessor for prior approval, which approval will not be unreasonably withheld, conditioned or delayed. Lessor shall give such approval or provide Lessee with its requests for changes within five (5) business days of Lessor's receipt of Lessee's plans. If Lessor does not provide such approval or request for changes within such five (5) business day period, Lessor shall be deemed to have approved the plans. Lessor shall not be entitled to receive any additional consideration in exchange for giving its approval of Lessee's plans. Lessee shall maintain Lessee's Facilities and the Premises in neat and safe condition in compliance with all applicable codes and governmental regulations. Lessee shall not be required to make any repairs to the Premises except for damages to the Premises caused by Lessee, its employees, agents, contractors or subcontractors. Upon the expiration, cancellation or termination of this Lease Agreement, Lessee shall surrender the Premises in good condition, less ordinary wear and tear; however, Lessee shall not be required to remove any foundation supports for Lessee's Facilities or conduits which have been installed by Lessee. 9. Title to Lessee's Facilities. Title to Lessee's Facilities and any equipment placed on the Premises by Lessee shall be held by Lessee. All of Lessee's Facilities shall remain the property of Lessee and are not fixtures. Lessee has the right to remove all Lessee's Facilities at its sole expense on or before the expiration or termination of this Lease Agreement. Lessor acknowledges that Lessee may enter into financing arrangements including promissory notes and financial and security agreements for the financing of Lessee's Facilities (the "Collateral") with a third party financing entity and may in the future enter into additional financing arrangements with other financing entities. In connection therewith, Lessor (i) consents to the installation of the Collateral to the extent that the Collateral is part of the approved Lessee's Facilities; (ii) disclaims any interest in the Collateral, as fixtures or otherwise, whether arising at law or otherwise, including, but not limited to any statutory landlord's lien; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 3 of 15 10. Utilities. Lessee shall have the right to install utilities, at Lessee's expense, and to improve the present utilities on or near the Premises (including, but not limited to the installation of emergency back-up power). Subject to Lessor's approval of the location, which approval shall not be unreasonably withheld, conditioned, or delayed, Lessee shall have the right to place utilities on (or to bring utilities across) Lessor's Real Property in order to service the Premises and Lessee's Facilities. Upon Lessee's request, Lessor shall execute recordable easement(s) evidencing this right. Lessee shall fully and promptly pay for all utilities furnished to the Premises for the use, operation and maintenance of Lessee's Facilities. Upon Lessee's request, Lessor shall allow Lessee to install sub-metering equipment on existing Lessor utility service(s). Lessee agrees to install, at Lessee's cost, the required equipment, meters and connections and will reimburse Lessor for Lessee's use of utilities at a rate equal to Lessor's unit cost for the utilities. Lessee shall pay the cost of utility service provided to the Premises and attributable to Lessee's use ("Utility Charge"). Lessee shall pay the estimated cost of the Utility Charge monthly in advance. The parties estimate the Utility Charge at the commencement of construction to be Throe Hundred Dollars and no/00 ($_300.00_) per month. During the term of this Lease Agreement, at Lessor's request (which request shall not be more frequent than once every twelve months), Lessee shall calculate the actual Utility Charge for the immediately preceding twelve (12) months based on the readings from the privately installed sub-meter at Lessor's property. If the actual Utility Charge varies from the estimated Utility Charges paid, the parties shall reconcile past payments of utility charges and adjust future estimates of the Utility Charge to reflect Lessee's actual usage. 11. Interference with Communications. Lessee's Facilities and operations shall not interfere with the communications configurations, frequencies or operating equipment which exist on Lessor's Real Property on the effective date of this Lease Agreement ("Pre-existing Communications"), and Lessee's Facilities and operations shall comply with all non-interference rules of the Federal Communications Commission ("FCC"). Upon written notice from Lessor of apparent interference by Lessee with Pre-existing Communications, Lessee shall have the responsibility to promptly terminate such interference or demonstrate to Lessor with competent information that the apparent interference in fact is not caused by Lessee's Facilities or operations. Lessor shall not, nor shall Lessor permit any other tenant or occupant of any portion of Lessor's Real Property to, engage in any activities or operations which interfere with the communications operations of Lessee described in Section 2, above. Such interference with Lessee's communications operations shall he deemed a material breach by Lessor, and Lessor shall have the responsibility to promptly terminate said interference. In the event any such interference does not cease promptly, the parties acknowledge that continuing interference will cause irreparable injury to Lessee, and therefore Lessee shall have the right to bring a court action to enjoin such interference or to terminate this Lease Agreement immediately upon notice to Lessor. Lessor agrees to incorporate equivalent provisions regarding non-interference with Pre-existing Communications into any subsequent leases, licenses or rental agreements with other persons or entities for any portions of Lessor's Real Property. 12. Taxes. Lessor shall be responsible for payment of any and all ad valorem taxes levied upon the lands, improvements and other property of Lessor. Lessee shall be responsible for all taxes levied upon Lessee's leasehold improvements (including Lessee's equipment building and tower) on the Premises. Lessor shall provide Lessee with copies of all assessments notices on or including the Premises immediately upon receipt, but in no event later than thirty (30) days after receipt by Lessor. If Lessor fails to provide such notice within such time frame, Lessor shall be responsible for all increases in taxes for the year covered by the assessment. Lessee shall have the right to contest, in good faith, the validity or the amount of any tax or assessment levied against the Premises by such appellate or other proceedings as may be appropriate in the jurisdiction, and may defer payment of such obligations, pay same under Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 4 of 15 protest, or take such other steps as Lessee may deem appropriate. This right shall include the ability to institute any legal, regulatory or informal action in the name of the Lessor, Lessee, or both, with respect to the valuation of the Premises. Lessor shall cooperate in the institution and prosecution of any such proceedings and will execute any documents required therefore. The expense of any such proceedings shall be borne by Lessee and any refunds or rebates secured as a result of Lessee's action shall belong to Lessee. 13. Termination. This Lease Agreement may be terminated by Lessee effective immediately without further liability by delivery of written notice thereof to Lessor prior to the Commencement Date for any reason resulting from Lessee's Due Diligence, or if a title report obtained by Lessee for Lessor's Real Property shows any defects of title or any liens or encumbrances which may adversely affect Lessee's use of the Premises for Lessee's intended use, or for any other or no reason. This Lease may be terminated without further liability on thirty (30) days prior written notice as follows: (i) by either party upon a default of any covenant, condition, or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of default; (ii) by Lessee if it does not obtain licenses, permits or other approvals necessary to the construction or operation of Lessee's Facilities ("Permits"), is unable to obtain such Permits without conditions which are not standard or typical for premises where wireless communications facilities are located or is unable to maintain such licenses, permits or approvals despite reasonable efforts to do so; (iii) by Lessee if Lessee is unable to occupy or utilize the Premises due to ruling or directive of the FCC or other governmental or regulatory agency, including, but not limited to, a take back of frequencies; or (iv) by Lessee if Lessee determines that the Premises are not appropriate for its operations for economic, environmental or technological reasons, including, without limitation, signal strength or interference. Other than as stated herein, Lessor shall not have the right to terminate, revoke or cancel this Lease Agreement. 14. Destruction of Premises. lftbe Premises or Lessor's Property is destroyed or damaged so as in Lessee's judgment to hinder its effective use of Lessor's Property for the ongoing operation of a wireless communications site, Lessee may elect to terminate this Lease Agreement without further liability of Lessee as of the date of the damage or destruction by so notifying Lessor no more than thirty (30) days following the date of damage or destruction. In such event, all rights and obligations of the parties which do not survive the termination of this Lease Agreement shall cease as of the date of the damage or destruction. 15. Condemnation. If a condemning authority takes all of Lessor's Real Property, or a portion which in Lessee's reasonable opinion is sufficient to render the Premises unsuitable for Lessee's ongoing operation of a wireless communications site, then this Lease Agreement shall terminate without further liability of Lessee as of the date when possession is delivered to the condemning authority. In any condemnation proceeding each party shall be entitled to make a claim against the condemning authority for just compensation recoverable under applicable condemnation law. Sale of all or part of the Premises to a purchaser with the power of eminent domain in the face of the exercise of its power of eminent domain shall be treated as a taking by a condemning authority. 16. Insurance. Lessee shall maintain the following insurance: (1) Commercial General Liability with limits of One Million Dollars ($1,000,000.00) per occurrence, (2) Automobile Liability with a combined single limit of One Million Dollars ($1,000,000.00) per accident, (3) Workers Compensation as required by law, and (4) Employer's Liability with limits of One Million Dollars ($1,000,000.00) per occurrence. Lessor, at Lessor's sole cost and expense, shall procure and maintain on the Property, bodily injury and property damage insurance with a combined single limit of at least One Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 5 of 15 Million Dollars ($1,000,000.00) per occurrence. Such insurance shall insure, on an occurrence basis, against liability of Lessor, its employees and agents arising out of or in connection with Lessor's use, occupancy and maintenance of the Property. Each party shall be named as an additional insured on the other's policy. Each party shall provide to the other a certificate of insurance evidencing the coverage required by this paragraph within thirty (30) days of the Commencement Date. Each party waives any rights of recovery against the other for injury or loss due to hazards covered by their property insurance, and each party shall require such insurance policies to contain a waiver of recovery against the other. 17. Assignments or Transfers. Lessor may assign or transfer this Lease Agreement to any person or entity without any requirement for prior approval by Lessee, provided that such assignee or transferee agrees in writing to fulfill the duties and obligations of the Lessor in said Lease Agreement, including the obligation to respect Lessee's rights to nondisturbance and quiet enjoyment of the Premises during the remainder of the Term and any Renewal Term hereof. Lessee may assign or transfer this Lease Agreement without prior approval by Lessor to any of Lessee's partners, shareholders, members, subsidiaries, or affiliates, to any entity in which Lessee or any of its affiliates holds an ownership interest, or to a person or entity acquiring by purchase, merger or operation of law a majority of the value of the assets of Lessee or to any entity whose business is the ownership of telecommunication towers. Lessee shall not assign or transfer this Lease Agreement to any other person or entity without the prior written approval of Lessor, which approval shall not be unreasonably withheld, conditioned, or delayed. Lessee may assign or transfer this Lease Agreement upon written notice to Lessor provided that any such assignee assumes all of Lessee's obligations hereunder. Notwithstanding anything to the contrary contained in this Agreement, Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Agreement to any financing entity, or agent on behalf of any financing entity to whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by loans, bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. 18. Subleases. Lessee at its sole discretion shall have the right, without any need to obtain the consent of Lessor, to license or sublease all or a portion of the Premises and the Lessee's Facilities to others whose business includes the provision of wireless communication services. Lessee's licensee(s) and sublessee(s) shall be entitled to modify the Lessee's Facilities and to erect additional improvements on the Premises including but not limited to antennas, dishes, cabling, additional storage buildings or equipment shelters as are reasonably required for the operation and maintenance of the communications equipment to be installed on the Premises by said licensee(s) and sublessee(s). Lessee's licensee(s) and sublessee(s) shall be entitled to all rights of ingress and egress to the Premises and the right to install utilities on the Premises as if said licensee or sublessee were the Lessee under this Lease Agreement. 19. Nondisturbance and Quiet Enioyment~ Subordination~ Estoppel Certificates. (a) So long as Lessee is not in default under this Lease Agreement, Lessee shall be entitled to quiet enjoyment of the Premises during the term of this Lease Agreement or any Renewal Term, and Lessee shall not be disturbed in its occupancy and use of the Premises. (b) This Lease Agreement shall be subordinate to each and every deed of trust, mortgage or other security instrument which may now or hereat~er affect Lessor's Real Property and to any renewals, extensions, supplements, amendments, modifications or replacements thereof. In Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 6 of 15 confirmation of such subordination, Lessee shall execute and deliver promptly any certificate of subordination that Lessor may reasonably request, provided that such certificate acknowledges that this Lease Agreement remains in full force and effect, recognizes Lessee's fight to nondisturbance and quiet enjoyment of the Premises so long as Lessee is not in default under this Lease Agreement, only contains true and accurate statements and Lessee's liability shall be capped at the remaining rent under this Lease Agreement. If any mortgagee or lender succeeds to Lessor's interest in Lessor's Real Property through a foreclosure proceeding or by a deed in lieu of foreclosure, Lessee shall attorn to and recognize such successor as Lessor under this Lease Agreement. (e) At any time upon not less than ten (10) days' prior written notice by Lessor, Lessee shall execute, acknowledge and deliver to Lessor or any other party specified by Lessor a statement in writing certifying that this Lease Agreement is in full force and effect, if true, and the status of any continuing defaults under this Lease Agreement. 20. Indemnifications. (a) Lessee's Indemnity. Lessee hereby agrees to indemnify and hold Lessor and Lessor's officers, directors, partners, shareholders, employees, agents, contractors or subcontractors harmless from and against any and all losses, claims, liabilities, damages, costs and expenses (including reasonable attorney's fees and costs) and injuries (including personal injuries or death) arising from or in connection with Lessee's use, operation, maintenance or repair of Lessee's Facilities at the Premises or access over Lessor's Real Property or Lessee's shared use of Lessor's easements for access to the Premises, except those resulting from the negligence or willful misconduct of Lessor or Lessor's officem, directors, partners, shareholders, employees, agents, contractors or subcontractors. (b) Lessor's Indemnity. Lessor hereby agrees to indemnify and hold Lessee and Lessee's officers, directors, partners, shareholders, employees, agents, contractors or subcontractors harmless from and against any and all losses, claims~ liabilities, damages, costs and expenses (including reasonable attorney's fees and costs) and injuries (including personal injuries or death) arising from or in connection with Lessor's use, operation, maintenance or repair of improvements on Lessor's Real Property, Lessor's shared use of easements for access to Lessor's Real Property, any violation of governmental regulations relating to the Premises and any towers used by Lessee (including the lighting or painting for aviation pathways), except those resulting from the negligence or willful misconduct of Lessee or Lessee's officers, directors, partners, shareholders, employees, agents, contractors or subcontractors. (c) Survival of Indemnity Provisions. The indemnity provisions of this section shall survive the expiration, cancellation or expiration of this Lease Agreement. 21. Hazardous Materials. Lessee agrees that it will not use, generate, store or dispose of any Hazardous Material on, under, about or within the Lessor's Real Property in violation of any law or regulation. Lessor represents, warrants and agrees (1) that neither Lessor nor, to Lessor's knowledge, any third party has used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any Hazardous Material (defined below) on, under, about or within Lessor's Real Property in violation of any law or regulation, and (2) that Lessor will not, and will not permit any third party to use, generate, store or dispose of any Hazardous Material on, under, about or within Lessor's Real Property in violation of any law or regulation. Lessor and Lessee each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims Site-No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 7 of 15 and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any representation, warranty or agreement contained in this paragraph. As used in this paragraph, "Hazardous Material" Shall mean petroleum or any petroleum product, asbestos, any substance known by the state in which Lessor's Real Property is located to cause cancer and/or reproductive toxicity, and/or any substance, chemical or waste that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. This paragraph shall smvive the termination of this Agreement. 22. Notices and Deliveries. Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, confirmed fax, or reliable overnight delivery service to the address of the respective parties set forth below: Lessor: Town of Southold Town Hall 53095 Main Rd PO Box 1179 Southold, NY 1 t971-0959 Attn: Lori Hulse Telephone: 631 765 1939 Facsimile: 631 765 6639 Federal Taxpayer ID Number: 11-600-1939 Lessee: MetroPCS 5 Skyline Dr. Hawthorne, NY 10532 Attn: Property Manager With a copy to: MetroPCS New York, LLC 2250 Lakeside Boulevard Richardson, TX 75082 Attn: Property Manager Telephone: 215-265-2550 Facsimile: 866-457-4126 Lessor or Lessee may from time to time designate any other address for notices or deliveries by written notice to the other party. 23. Miscellaneous. (a) Severability. If any provision of the Lease Agreement is held to be invalid or unenforceable by a court of competent jurisdiction with respect to any party, the remainder of this Lease Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable shall not be affected, each provision of this Lease Agreement shall be valid and enforceable to the fullest extent permitted by law} and the parties shall negotiate in good faith to amend this Lease Agreement to retain the economic effect of the invalid or unenforceable provisions. Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 8 of 15 (b) Binding Effect. Each party represents and warrants that said party has full power and authority, and the person(s) executing this Lease Agreement have full power and authority, to execute and deliver this Lease Agreement, and that this Lease Agreement constitutes a valid and binding obligation of each party, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditor's rights generally and by general equitable principles (whether enforcement is sought in proceedings in equity or at law). This Lease Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. (c) Waivers. No provision of this Lease Agreement shall be deemed to have been waived by a party unless the waiver is in writing and signed by the party against whom enforcement of the waiver is attempted. No custom or practice which may develop between the parties in the implementation or administration of the terms of this Lease Agreement shall be construed to waive or lessen any right to insist upon strict performance of the terms of this Lease Agreement. (d) Governing Law. This Lease shall be governed by and construed in accordance with the laws of the State in which the Premises are located. (e) Attorneys' Fees and Costs. The prevailing party in any legal claim arising hereunder shall be entitled to its reasonable attorneys' fees and court costs. (t) Survival. Terms and conditions of this Lease Agreement which by their sense and context survive the termination, cancellation or expiration of this Lease Agreement will so survive. (g) Memorandum of Lease. Lessor acknowledges that a Memorandum of Agreement substantially in the form annexed hereto as Exhibit C will be recorded by Lessee in the Official Records of the County where the Property is located. (h) Entire Agreement; Amendments. This Lease Agreement constitutes the entire agreement and understanding between the parties regarding Lessee's lease of the Premises and supersedes all prior and contemporaneous offers, negotiations and other agreements concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments to this Lease Agreement must be in writing and executed by duly authorized representatives of both parties. (i) No Presumptions Regarding Preparation of Lease Agreement. The parties acknowledge and agree that each of the parties has been represented by counsel or has had full opportunity to consult with counsel and that each of the parties has participated in the negotiation and drafting of this Lease Agreement. Accordingly it is the intention and agreement of the parties that the language, terms and conditions of this Lease Agreement are not to be construed in any way against or in favor of any party hereto by reason of the roles and responsibilities of the parties or their counsel in connection with the preparation of this Lease Agreement. [SIGNATURE PAGE FOLLOWS] Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 9 of 15 IN WITNESS WHEREOF, the parties have caused this Lease Agreement to be executed by their duly authorized representatives on the dates set forth below and acknowledge that this Lease Agreement is effective as of the date first above written. LESSOR: Town of Southold, a municipal corporation of the State of New York By: Print Name: Title: Date: By: Print Name: Title: Date: (Signature) LESSEE: MetroPCS New York LLC, a Delaware limited liability company By: Print Name: (Signature) Dan Olme~i Title: Date: VP-General Manager-New York Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 10 of 15 EXHIBIT A DESCRIPTION OF LESSOR'S REAL PROPERTY to the Lease Agreement dated ,200_~ by and between Town of Southold, a municipal corporation of the State of New York as Lessor, and MetroPCS New York, LLC, a Delaware limited liability company, as Lessee. Lessor's Property of which Premises are a part is described as follows: See Next page Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 11 of 15 TOWN Q~LD M~:TS:S A~D nOU~D~ ~'L~ 'lhal pl~e or parcel of land siluale, lyin~ and bein~ al Peconic, in thc 'l~wn o~Soutlto~d, ~nfl~l~ County. New York, boand~l and describ~l as Ibllows: BEGINNING al a ~luke set on Ihe westerly aide of Peeonic [.uae which s~ak~ ~om~ ll~e ~utheaalerly comer of tie herein, Ilar desc,l~d premises m~d lhe no,hensterly comer of land or Pcconic 'l'mcking Company; mnniua ruanin~ Ihcnce Ioulh 30' IO'~O" ease along other land ortho pn~ie, of dm fl.~ pan 146,42 Fee& to a poinl; miming lhence no~h 4~ ~17' cl~l along oilier hind o1' die padie~ or ibc fl~l pa~ and land al' Pcconic Tracking Company 2S 1.21 I~c~ Ia tl~e I~int or place of ~imlina. All Ihnl ccrhml p{ol, piece ur pa~ai of hnld, wilh Ihe btdldhig,, and iniproventcllia thereon c~.~Ic~,i, situate, lyinl~ and being ill Ibc TOWN O1: SOUTIIOLI), ill I'cconlc, Suffolk Counly, New York, hoLinded and described lis Ibllowel: IH:.C.;INNIN(; at a poinl on the easterly line of hind of lbo Davids I':llale and the ~c~terly Exta~e, No~h 33 ~ 31' 20" West 822.X~ I~1 to land or l)ohck: t~nce eton~ ~ald land of ~onh 4h' 4? 2~" Earl 271.99 feel; Ihence along land of Uobek and land of~um~en~kt, Sarah ~' 34' 3o" E~s~ SS?.~'~ I~e~: three ~}on8 lan~ o~ Latham and along land or Ihe Town or Soalhohl, South 30" I0' 5(1" I{usl 278.41 I~1 Io Ihe point orhegim~i~. All thai certain IDiOt, piece or parcel al'hind, with Ibc bnihlinga and intpmvelnems thereon erected, sitaate, lyin~ dad bem~ in the Town tff $oathok). ut ))~onic. ~uffolk County. New York. hoandol lllal descend us Ibllow~: IH':(iINNINLi at a petal o~t Ihe northerly side of Main Road al t. he premises herein de,cribed adjel.lng hind or~lanley (jadom;ki on IIw wes1; ~noin8 said land of Oadomski. Nodll 33" 31' 20" Wail IO20.0 Ibet to ~t Iocast poll ~nd hind or ~k; rum~ing dlencc along land of I)obek Notd~ 46" 42' 2(Y' East 267,15 f~t Io a monanlenl npd land of lbo Town ol'Soa01old; mmlin8 Ii,once fllon~ said In~ orlho Town or ~outhokt ~11" J~a~l S22.85 reel io u i11onanlenl end land of Stememamt; ratnJin8 thence nloo~ said hind or No~hcrly linc of Mare Road: thence ~nnin8 along d~e Norlherly linc or Main Rna~ South 48 411' West 17'/.84 f~t to II~e poinl or place of IIEOINNINCi, Assessors Parcel Number: District 1000, Section 75, Block 5, Lot 014.001 Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 12 of 15 EXHIBIT B DESCRIPTION OF PREMISES to the Lease Agreement dated ~ 200__, by and between Town of Southold, a municipal corporation of the State of New York, as Lessor, and MetroPCS New York LLC, a Delaware limited liability company, as Lessee. The Premises consist of those specific areas described/shown below or attached where Lessee's communications antennae, equipment and cables occupy Lessor's Real Property. The Premises and the associated utility connections and access, including easements, ingress, egress, dimensions, and locations as described/shown, are approximate only and may be adjusted or changed by Lessee at the time of construction to reasonably accommodate sound engineering criteria and the physical features of Lessor's Real Property. SEE ATTACHED DRAWINGS (A final drawing or copy ora property survey or site plan depicting the above shall replace this Exhibit B when initialed by Lessor or Lessor's designated agent and may be modified from time to time when initialed by both Lessor and Lessee.) Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 13 of 15  NO~TH ELEVATION 8 ¢4/11/¢~ ~EVlSED ~E~ CLIENT ELEVATION 4i4¢~ ~OgTE 2~ DESIGN~ ~'~' ~ ~o u ~_ metroPCS. ~' ~,~.~ ~ou.~ ~ EXHIBIT C MEMORANDUM OF AGREEMENT CLERK: Please return this document to: MetroPCS New York, LLC 5 Skyline Drive Hawthorne, NY 10532 Attn.: Property Manager This Memorandum of Agreement is entered into on this day of ~ , by and between Town of Southold a municipal corporation of the State of New York with an office at 53095 Main Road, Peconic, NY 11971 (hereinafter referred to as "Lessor"), and MetroPCS New York LLC, a Delaware limited liability company, with an office at (hereinafter referred to as "Lessee"). Lessor and Lessee entered into a Communications Site Lease Agreement ["Agreement"] on the __ day of , ~, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Agreement. The term of the Agreement is for five (5) years commencing on the date Lessee begins construction of Lessee Facilities or eighteen months fi.om full execution of this Lease Agreement whichever first occurs ("Commencement Date") and terminating on the fifth anniversary of the Commencement Date, with four (~4 ) successive five (5) year options to renew. In no event shall the term of the Agreement exceed third-five (35) years. 3. The Land which is the subject of the Agreement is described in Exhibit A annexed hereto. IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement as of the day and year first above written. LESSOR: LESSEE: Town of Southold, a municipal corporation of the State of New York MetroPCS New York LLC, a Delaware limited liability company By: Name: Title: Date: By: Title: Sanle: Title: Date: Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 14 of 15 STATE OF COUNTY OF 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(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacit(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public STATE OF Stgnature COUNTY OF ,~*~ *, J ,,~.~ ~, 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(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacit(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public Site No.: NY 7315 Site Address: Main Rd, Peconic, NY 11958 EXECUTION COPY 6.2.09 Page 15 of 15 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: MetroPCS York LLC 5 Skyline Drive Hawthorne, NY 10532 Attn.: Property Management Site # NY 7315 MEMORANDUM OF LEASE AGREEMENT This Memorandum of Agreement is entered into on this day of ,200~ by and between Town of Southold, a municipal corporation of the State of New York, ~vith an office at Town of Soathold, Town Hall, 53095 Main Rd, Sou*hold, NY 11971 (hereinafter refereed to as "Lessor"), and MetroPCS New York, LLC, a Delaware limited liability company, with an office at 5 SkylineDfive, Hawthome, NY 10532 (hereinafter referred to as "Lessee"). Lessor and Lessee entered into a Communications Site Lease Agreement ["Agreement"] on *he day of · 200~ for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Agreement. The term of the Agreement is for five (5) years commencing on *he date Lessee begins construction of Lessee Facilities, or eighteen (18) months from full execution of the Lease Agreement, whichever first occurs ("Commencement Date") and terminating on the fil~h anniversary of the Commencement Date, with four (4) successive five (5) year options to renew. In no event shall the term of the Agreement exceed thirty-five (35) years. 3. The Land which is the subject of the Agreement is described in Exhibit A annexed hereto. IN WITNESS WHEREOF, the parties have executed *his Memorandum of Agreement as of the day and year first above written. LESSOR: LESSEE: Town of Southold, a municipal corporation of the State of New York By: . Title: Date: MetroPCS New York, LLC, a Delaware limited liability company By: Title: Date: On ~'t~,o~ il~ ~0o~' , before me, ~ 1~O ~ ~O ~ ~ Not~ Publi~, personally appe~ed 5 ~ ~. ~ tA_r _C ~ ( ( , person~ly ~own to me (or proved to me on ~e basis of satisfactow evidence) to be ~e person~ whose name(~ is~subscribed to ~e wi~in ins~ment ~d ~n hm. auto acknowledged to me that he~hc.'thzy executed the s~e ' · ~/,hoi~ h rized capacity~, and that by hi~:r~Lh:!r si~ature(~ on the instmmenh the person(~, or the entity upon behalf of which the person(~ acted, executed the instrument. WITNESS my hand and official seal. Notary l~ublic ! SEAL LINDA J COOPER ( ~OTARY PUBLIC, State of New Yo;'~ 563 Surf ?,i~ Co~,nt TNeOf~ 1~ xO~r4eSs2~)e o e ~ b e r '31,20~ STATE OF COUNTY OF On · before mc, , Notary Public, personally appeared · personally known to me (or proved to mc on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and that by his/her/their signature{s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public (SEAL) STATE OF COUNTY OF 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(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public EXHIBIT A DESCRIPTION OF LAND to the Agreement dated ,200~ by and between Town of Southold, a municipal corporation of the State of New York, as Lessor, and MetroPCS New York LLC, a Delaware limited liability company, as Lessee. The Land is described and/or depicted as follows:. TOWN QF SOU'rlIQLD MEI'E~ AND BOUNDS DESCRIPT[Q~. That piece or parcel o flmtd ,~iluate, lying and b~ing Iii Peennic. in lite Town ol'Southold, Suffolk County. New York, bonmlcd a.d de,tribal a~ Ibllowx: ITECiINNING al ~ ~luko NOt on Ihe we~t;rly aide of Peconic I.un¢ which s~ake fom~ &he Iouthcaalerly corner of Lhc hereinaller descnl~d premises and Ihe no.heastcrly comer of bald or Pcconic Tracking ('ompanyl mnnin~ thence noah 3o"oo' wesl nlon~ II1~ wc~lerly side or Pcconic Lane 112.~ t~l Io a slake; running dmnce south ~(," I0' wcs( alon~ othcr [lnd offll~ po. ica oflhc flr. I pa. 24G.q~ I~¢1 Io a puinl; runniag Iho~e ~uth 30 ' 10'~o" easl ,long other land of lbo psl~ie, of the flrlt pa. 146,4l ree~ lo a ~*inl; atoning thence noffi~ 48'17' east ulna8 oilier Im~d of lira pa~ieJ of lite fl~l pan and land of Peconic 'rruukiag I'un~pany 251.21 I~et ~o lhe Imin~ or pln~u of ~glnoin8. All lind cerlain plol, piece ur parcel of land, will; the baildhlgk alld intl)rOvamanla Ihercon {r~mt~d. ~imate, lying and beiag ill Ibc TOWN Ol: SOt/TIIOI.D, al Peconic, Suffolk Cnnnly, York, bmlnd[,d alld d~scribed us Ibltows; BI'XiINNING at a point on lite en$lerly linc ol'lnnd ol'lhe David,'~ h'alale mid the westerly hn¢ of hold ot 0to Tmvn of Snail. Id, Noflh 30 * I{Y ~O" We~t 208,32 t~ from the noflhorly line I!atute, No~h 33 ' 31' 2[)" Wes1822,85 I~t 1o land or Dohck; tMnce alonB satd land of Dobek, No~h 46 ' 42' 20" Earl 271,99 feet; Ihenc¢ along laml of Dobek and laml o f 8um~en=kj, Soulh Somhold, South .10" IO' Io" Eu/I 27&41 t~cl to Ihg point orheginnin8. All dial cettmn plot, piece or parcel of hind, with Ihe bniMings and improvemenls thereon erected. ~it~mle. lying ami being in the Town o!' Sm,hold. al Pccoale. Suffolk County. New York. bounded and deacrib~d ,s Ibllows: III:,(iINNING tit a point on th,.' ngrtherly xide of Main Rotnl al Otc iOtlthWOll comer of ~aid Imld otGado/n~ki, No~h 33" 31' 20" West 1020,O I~et to t[ Iocua[ poll a~ land of Do~k; running thence along land of flock North 46" 42' 20" Eas1207.1 ~ reel io a monamenl apd I~d of the Town of Sollthold; nmnin8 thence alon~ ~uid land ortho Town ofgou~hoM South 33" 31' 21)" Elint 822.85 feet to a montallent and land or Stonsenumo; running thence nlm~8 nejd land or ~tcnxetnaon: t I } South 48' 4(~' W~sk ~O~ f~t ant~ [2) SOUth 36" 53' ~" I[Ut 205 f~t I0 t~ Northerly linc of Main Ronda thence nnlllin8 lllon$ Utc Norlherly linc of Main Road South 48' 4Ir We~t 177.84 feet Io [l~e poinl or pla~e otBEGINNING, and otherwise known as: APN: District 1000, Section 75, Block 5, Lot 014.001 o.~ W-9 Request for Taxpayer Give form to the Identification Number and Certification requester. Do not send to the IRS. (Rev. November 2005) Name (as~_~3pwn.,To ~ I¢~°n youro.~income tax.~V ~ oreturn) ~ ~! Business name. if different from above Check appropriate box: [] individual/ .................. Exempt from backup Sole proprietor ~ Corporation [] Partnership [] Other I~ [] withholding Address (number, street, and apt, or suite no.) List account number(s) here (optional) aa Taxpayer Identification Number {TIN) Requester's name and address (optional) Enter your TIN in the appropriate box. The TIN provided must match the name given on Line 1 to avoid backup withholding. For individuals, this is your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN on page 3. Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose number to enter. Certification sT'TcTi"T or Under penalties of perju[y, I certify that: t. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to m~), and 2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. I am a U.S. person (including a U.S. resident alien). Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured properbj, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments oJ~jer than interest and dividends, you are not required to sign the Certification, but you must provide your correct TIN. {See the instructio~j~n page 4.) SignISignature of /~'~'~..//. , Here I u.s. person !~ ~ ~¢.,~..g~.~_.,,~,,~_~X~ Date ~' /-~.ll I~l./~,,~/ Purpose of Form · An individual who is a citizen dtt resident of the United A person who is required to file an information return with the IRS, must obtain your correct taxpayer identification number (TIN) to report, for example, income paid to you, real estate transactions, mortgage interest you paid, acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an IRA. U.S, person. Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN to the person requesting it (the requester) and, when applicable, to: 1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued), 2. Certif7 that you are not subject to backup withholding, or 3. Claim exemption from backup withholding if you are a U.S. exempt payee. In 3 above, if applicable, you are also certifying that as a U.S. person, your allocable share of any partnemhip income from a U.S. trade or business is not subject to the withholding tax on foreign partners' share of effectively connected income. Note. If a requester gives you a form other than Form W-9 to request your TIN, you must use the requester's form if it is substantially similar to this Form W-9. For federal tax purposes, you are considered a person if you States, · A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States, or · Any estate (other than a foreign estate) or trust. See Regulations sections 301.7701 -6(a) and 7(a) for additional information. Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax on any foreign partners' share of income from such business. Further, in certain cases where a Form W-9 has not been received, a partnership is required to presume that a partner is a foreign person, and pay the withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnersh)p to establish your U.S. status and avoid withholding on your share of partnership income. The person who gives Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States is in the following cases: · The U.S. owner of a disregarded entity and not the entity, Cat. No. 10231X Form W-9 (Rev. 11-2005)