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HomeMy WebLinkAboutAmerican Towers LLC RESOLUTION 2013-645 ADOPTED DOC ID: 9051 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION N0.2013-645 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON AUGUST 27, 2013: RESOLVED that the Town Boazd of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute the License Agreement between the Town of Southold and American Towers LLC, in connection with the installation of a Town-wide High Band Radio Communication System, subject to the approv~al~of}~the Town Attorney. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: William P. Ruland, Councilman SECONDER: Louisa P. Evans, Justice AYES: Dinizio Jr, Ruland, Doherty, Talbot, Evans, Russell RESOLUTION 2013-645 ADOPTED DOC ID: 9051 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION N0.2013-645 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON AUGUST 27, 2013: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute the License Agreement between the Town of Southold and American Towers LLC, in connection with the installation of a Town-wide High Band Radio Communication System, subject to the approv~ael of the Town Attorney. °"e~~• Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: William P. Ruland, Councilman SECONDER: Louisa P. Evans, Justice AYES: Dinizio Jr, Ruland, Doherty, Talbot, Evans, Russell LICENSOR SITE NAME /NUMBER: NOYACK, NY / !18743 LICENSEE SITE NAMFJNUMBER: TBD / TBD LICENSE AGREEMENT ATC Conhact No: This LICENSE AGREEMENT ("Agreement') entered into as of the latter signature date hereof (`Effective Date') by and between American Towers LLC, a Delaware limited liability company with a place of business at 10 Prasidenltal Way, Wobum, MA O1t101 (`Licensor") and the Town of Southold, a New York govemmeM entity, with a place of business at 53095 Main Road, Southold, New York 11971 (°Licerreee"). 1. TOWER FACILITY INFORMATION: Site Name: NOYACK, NY SAe Number: 88143 Address and/or kxation of Tower FacUity: 507 Middle Line Highway, Sag Harbor, NY 11963-3601 Tower Facility Coordinates: Lat. 40.91397 Long. •72.3463 11. NOTICE 8 EMERGENCY CONTACTS: • Licensee's local emergency contact (name and number): Andrew Hintze • Licensors local emergency contact: Nehvork Operations Communications Center (800) 830-3385. • Notices to Licensee shall be sent to the address shove to the attention of Scott RusseN, Towrt7 Supervisor. • Notices to Licensor shall be sent to the address above to the attention of Contracts Manager. • Licensors Remittance Address: American Tower Corporation, Lockbox 7501, P.O. Box 7247, Philadelphia, PA 19170- 7501; all payments shall inctude a reference to the Slte Name and Sile Number as identified above in Section I. 111. PERMITTED USE OF TOWER FACILITY BY LICENSEE: Transmitfing and Receiving hequencies: See Exhibit A for specific frequenraes Antenna mount height on lower. See Exhibit A for spedfic bcation All other permkled uses of the Tower Facility including Licensee's Approved Equipment, and the Licensed Space are further described in section 4 of this Agreement and Exhibits A and B attached hereto. IY. FEES 8 TERM Monthly License Fee: One Thousand and no/100 Dollars ($1,000.00), increased by the Annual Escalator on the first anniversary of the Commencement Date of this Agreement and each annversary of the Commencement Date thereafter during the Term (as defined in Appendix I). The Annual Escalator is 4%. Applicaton Fee: $ N/A. The parties hereby adrnowledge that the Application Fee became due and payable upon submission of Licensee's Application, is nonrefundable and was earned in fuU by Licensor upon receipt of such Appliceton (all references to "Application" made herein are to the then-current application form issued by Licensor). Relocation Appl'rcetion Fee: $500.00 per Application submitted pursuant to section 10(c), subject to increases at the Annual Escalator, compounded on each anniversary of the Effective Date. Site Inspection Fee: $1,000.00, increased annually on each anniversary of the Commencement Date of this Agreement by a percentage rata increase equal to the Annual Escalator. Initial Term: A period of 10 years beginning on tt7e Commencement Date. The "Commencement Date" shall be the earlier of: (i) the date of Licensors issuance of a NTP or (ii) October 1, 2013. Renewal Terms: 3 additional periods of 5 years each. Connection Fee (as described in section 5(b)): N/A Electricity for operation of Approved Equipment is to be provided by (check one): ? Licensor, wfth the cost of such electricity to be paid by Licensee at the initial rate of $ per month ("Utility Fee°) subject adjustment pursuant to Section 5(b), OR ® Licensee, at Rs sole expense. V. TERMS & CONDITIONS The attached terms and conditions are ir7corporeted herein by this reference. VI.4THER PROVISIONS: Other provisions: (check one): ? None ®As listed below a) Notwithstanding anything to the contrary in this Agreement, the otter expressed to Licensee in this Agreement shall automatically become null and void with no further obligation by either party hereto if a structural analysis of the Tower „~.u,..•.., ECMg41028 Rev. 02.24.09 LICENSOR SITE NAME! NUMBER: NOYACK, NY! 88143 LICENSEE SITE NAMEINUMBER: TBD / TBD Facility completed after the execution of this Agreement by Licensor but before the commencement of the installation of Licensee's Approved Equipment indicates that the Tower Facility is not suitable for Licensee's Approved Equipmem unless Licensor and licensee mutually agree that structural modifications or repairs shah be made to the Tower Facil'8y on mutually agreeable terms. b) In the event that Licensor determines a Shared Site Interference Study is required, Licensor and Licensee agree and acknowledge that this Schedule shall be contingent upon a satisfactory resuR of said Shared Site Interference Study. c) In no event shall Licensee's use of the Tower Facility, or operation of any of its equipment thereon, be conducted in a manner that interferes with Licensor's lighting system located on any of the towers, building systems, or, in fhe event that Licensee's equipment is installed on the rooftop of a building, with equipment of any kind used by building tenants who are not tenants of the Licensor. In the event that such interference does occur, Licensee ehaM be solely responsible to reimburse Licensor for any and all costs required to modify and/or upgrade Licensor's lighting system, to comply with all necessary FAA/FCC regulations, as a result of said interference. d) Licensor and Licensee agree and acknowledge that Licensee shall be responsible for painting the transmission lines to match the colors of the tower. [Signatures appear on next page] 2 ,.~..,e.,., ECM#41028 Rev. 02.24.09 LICENSOR SITE NAME I NUMBER: NOYACK, NY! 88143 LICENSEE SITE NAMEMUMBER: TBD t TBD 1N WITNESS WHEREOF, each Party in consideration of the mutual covenants contained herein, and for other good and valuable consideration, intending to be legally bound, has caused this Agreement to be executed by its duly authorized representative as of the date and year written below; provided, however, that This Agreement shall not become effective as to either Party until executed by both Parties. LICENSOR LICENSEE American Towers LLC, Town of Souttwld a Delaware limited liability company a New York mment entlty By: By: i , r-,^ , Print Name: ~ ~ ~ Print ame: Scott Russell Its: Its: Town Supervisor Date: ~~3 3~/~7 Date: 9/3 /t3 3 ECM#4(028 Rev. 02.24.09 LICENSOR SITE NAME /NUMBER: NOYACK, NY /98143 LICENSEE SITE NAME/NUMBER: TBD I TBD TERMS AND CONDITIONS 1. DEFINITIONS. Capitalized terms defined in fhe body of this Agreement are indexed by location on Appendix I attached hereto. Capitalized terms used in Agreement but not claimed herein are defined in Appendix I. 2. GRANT OF LJCENSE. Subject to the terms of this Agreement, Licensor hereby grants Licensee anon-exclusive license to install, maintain and operate the Approved Equipment at the Licensed Space. All Approved Equipment shall be and remain Licensee's personal property throughout the Terre of this Agreement. Licensor stall maintain the Tower Fadlity in good order and repair, wear and tear, damage by fire, the elements or other cesuaky excepted. In no event shall Licensee's license as granted herein include rights to use the air space above the Approved Equipment, and Licensor reserves the right to install, construct and/or operate addkional improvements or equipment of Licensor or others above Licensee's Approved Equipment, including Licensee's shaker (commonly referred to as "stacking7, provided thaS such addkional improvements or equipment do not materialy and adversely interfere with the access to or operation of the Approved Equipment, including Licensee's shelter. Licensee is not required to utilize a stadcable shelter, provided that, 'rf Lioansee opts to irrstaN a sheter that is not stackable and if Licensor receives an oBer to license the air space above Licensee's ran-stackable shelter by a proposed subsequent user, Licensor may, al ks ell;ction, upon 30 days prior written notice require Licensee to replace such non-stadrabfe shaker with a stackable shelter of a comparable size, provided that the proposed subsequent user agrees in writing to be whdty responsible for the cost of Licensee's shaker replacement. Subject to any limitations contained in the Ground Lease, Licensor grants Licensee a right of access to the Tower Facility 24 hours per day, 7 days per week during the Term. Licensor grants Licensee a designated loceton for the installation of Licensee's utilities over, under or across the Tower Fadlity (collectively, "EasamenC). L'rcerlsee shall be responsible for any and all Damage or loss that resuks Trom the installation of any cebles ar utility wires by Licensee w any company w person retained by Licensee (including a public utility company), inducting, without limitation, any damage w loss that results Trom the acddeMal coking of utility wires or cables of any other party opereting at the Tower Fadlity. Licenecr shall provide Licensee with one set of keys and/or codes fo access the Tower Fadlity. t-icensee ahaN be responsible for ensuring that Licensor has, at all times, a complete and accurate written list of all employees end agents of Licensee who have been provided the keys or access codes to the Tower Fadlky. Licensor shall have the right to oondnue to occupy the Tower Facll'Ity and to grant rights to others to the Tower Fadlity in its sole diswetan. Licensee shall have no property rights or interest in the Tower Fadlity or the Easement by virtue of this Agreement If Licensors right to kcsnse space on the Tower FacNky to Licensee is subject to a right of first refusal for the benefit of a third party and k such third party exercises ks right of first refusal poor to the Commencement Date, Licensor may terminate this Agreement upon written notice to Licensee. 3. EXHIBITS. Within 45 days fdknving the commencement of the installation of fhe Approved Equipment, Licensee shah provide Licensor with as-built w construction drawings showing the Approved Equipment as installed [n both hard copy and electronic form] ("Caretntctlon Drewings'~; such Construction Drawings shall include the location of any shelters, cabinets, grounding dogs, cables, and utility lines associated with Licensee's use of the Tower Facility. Upon receipt, Licensor shall attach hereto the Construction prewings as xhibit C hereto. In the event that Licensee fails to deliver the Construction Drawings as required by This section, L'xxtrrsw may cause such Construction Drawings to l>e prepared on belak of Licensee and Licensor shall assess a fee for such Construction Drawings in an amount equal t0 120°h d the actual cost oT obtaining the Construction Drawings including in-house labor, which upon invoiclng shall become immediately due and payable by Licensee. In the event of inconsistency or discrepancy between (a) xhibi A and xhibi hereto, xhibit A stall govern, and (b) between Exhibit A (with rasped to Approved Equipment and antenna locations) together wkh hi B (wkh rasped to Ground Space installation locations) and Exhibit hereto, F~rhibks A and B shall govern, notwthstanding any approval or signature by Licensor or ks agents. Licensee hereby acknoaAedges and agrees that installation of the Approved Equipment must be in strict accordance with the approved Construction Drawings and Exhibit A and B. Notwithstanding the forgoing, Licensee shall not infer rar shall acceptance of the Construction Drawings by Licensor be deemed to be a representation by Licensor that (i) such Construction Drawings w the plans and spedficetions described therein are in compliance wkh federal, state or local laws, ordinances, rules or regulafans, (ii) that such installation shall not cause impermissible w unlawful interference, or (iii) that such installation is consistent wkh Licensee's permitted installation as spedficelly set forth in Exhibits A and B hereto. 4. USE. Subject to the terms of the Ground Lease, Licensee shah be permitted the non-exclusive fight to install, maintain, operate, service, modify and/or replace its Approved Equipment at the Licensed Space, which Approved Equipment shall be utilized for the trensmission and reception of wireless voice and data communications signals (such transmission and reception to be solely within the Permitted Frequendes, and, if the Permitted Frequendes include licensed spectrum, within the spectrum licensed to Licensee by the FCC). If as oS the Effective Date, Licensee's wireless business consists of a one-way network which requires only that signals be transmitted from the Tower Fadlity, then notwithstanding the foregoing sentence, Licensee's use of Tower Facility under this Agreement shah be limted to the transmission of wireless voice and data communications signals. Licensee's permitted use with respect to the Licensed Space shall be limited solely to that enumereted in this section, and, except pursuant to separate agreement 4 ECMN41028 Rev. 02.24.09 LICENSOR SITE NAME I NUMBER: NOYACK, NY /88143 LICENSEE SITE NAMEINUMBER: TBD I TBD with Licensor, no person or entity other Than Licensee shall have the right to install, maintain or operate its equipment or transmit or receive communications at, or otherwise use, the Licensed Space. 5. LICENSE FEES; TAXES; ASSESSMENTS. (a) Monthly License Fee. The Monthly License Fee as adjusted by the Annual Escalator, shall be payable in advance on the first day of each calendar month during the Term beginning upon the Commencement Date. If the Commencement Date is not the first day of a calendar month, the Monthly License Fee for any partial tnonM shall be prorated on a daily basis. (b) Ufllldes. All utility services installed on the Tower Fadlity for the use or benefit of Licensee shall be made at the sole cost and expense of Licensee and shall be separatey metered from Licensors utilities. Licensee shall be solely responsible for eMending utllUies to the Tower Facility as necessary for the operation of the Approved Equipment and for the payment of utility charges induding connedion charges and seamty depos'ds incurted by Licensee. Licensee shall obtain and pay the cost of telephone connections, the installation of which shall be in compliance with the procedures for instalation and maintenance of Approved Equipment set forth herein. (c) Taxes. (i) Property Taxes. Licensee shall be responsible for the reporting and payment when due of any tax diredly related to Licensee's ownership or operation of the Approved Equipment and such reporting and payment shall be made directly to the appropriate tax authorities. Licensee shall reimburse Licensor in full for any taxes assessed against Licensor but attributed to the Approved Equipment within 30 days of Licensors request for such reimbursement. Licensor shall pay all property taxes dinedly assessed against l.irensors property or for which Licensor is obligated to pay under the Ground Lease, provided, however, Licensee shall reimburse Licensee's pro rata share of such taxes. Licensee's pro rata share shall be determined by dividing such taxes eventy among all users Licensor has permitted to utilize any portion of the Tower Fadlity. Licensee shall reimburse Licensor for such taxes within 30 days of Licensors request for such reimbursement. (ii) Sales; Use and Other Taxes. Licensor shall be responsible for billing, collecting, reporting, and remitting sales, use and other taxes directly related to any License Fee or other payments received pursuant to this Agreement. Licensee shall be responsible for reimbursing Licensor for all such sales, use and other taxes billed related to any payments received pursuant to this Agreement. Licensor shall add to the License Fee or any other paymem than due and payable any assodated sales, use or other tax, which shall be paid by Licensee at U1e same time and in the same manner as License Fee or other payment due and payable under this Agreement. (d) Federal Use Fees 6 Assessments. In the event that a particular Licensed Space is at a Tower Fadlity located on property which is orated by the Bureau of Land Managemem ("BLM') or the United States Forest Service ("USES), Licensee shall reimburse Licensor for any and all fees or assessments attributable to Mis Agreement or Licensee's use of the Licensed Space paid by Licensor to the BLM or USES related to such Tower Facaity within 30 days of Licensors request for such reimbursement. (e) Restrfetlom on Remmbursement. Solely for the purposes of determining Licensee's portion of such taxes, fees, assessments or similar expenses as rxxttemplated in this Sedion 5 or anywhere else in this Agreement, it any such amounts are determined in whole or in part on the inceme or profits (aside from gross revenues) of any person or entity, Licensor and Licensee shah agree on a fixed amount (subjed to the Annual Escalator, which shall be applied im ttte same manner as it is applied to the License Fee), that shall be treated as such tax, fee, assessment or similar expense in lieu of the equal amount, which agreed to amoum shall be set forth in en amendment to this Agreement. (f) Payment Address. All payments due under this Agreement shall be made to Licensor at Licensors Remittance Address shown on page 1 of this Agreement or such other address as Licensor may rtotity Licensee of in writing. (g) No SetAff. All payments due under this Agreement shall be due without set-off, notice, counterdaim or demand from Licensor to Licensee. (h) Effect of Partlal Payment. No endorsement or statement an any check or letter accompanying a check far paymetN of any monies due and payable under the terms of this Agreement shall be deemed an accord and satisfadion, and Licensor may accept such check or payment without prejudice to its right to recover the balance of such monies or to pursue arty other remedy provided by law or in this Agreement. 6. TERM. 5 ,,....~...e.., scraxaro2s Rev. 02.24.09 LICENSOR SITE NAME /NUMBER: NOYACK, NY 188143 LICENSEE SITE NAME/NUMBER: TBD / TBD (a) Initial Tenn. The Initial Term of this Agreement shall be as specified on page 1. (b) Renewal Term. The Term of this Agreement may be extended for each of the Renewal Terms as specified on page 1 of this Agreement, provided that at the time of each such renevrel, (i) the Ground Lease remains in effect and has not expired or been terminated, (ii) Licensee is not in defauN hereunder and rw condition exists which if left uncured would with the passage of tlme or the giving of nofice resuO in a default by Licensee hereunder and (Ni) the original Licensee identified on page 1 of this Agreement has not assigned, sublicensed, subleased or otherwise transferred any of its rights hereunder. Provided that the foregoing conditlona are satisfied, this Agreement shall alrtoma0calty renew far each successive Renewal Term unless either Party notifies the other in writing of its intention not to renew this Agreement al least 180 days prior to the end of the then existing Term. (c) Hodover Term. If Licensee fails to remove the Approved Equipment at the expiration of the Tenn, such failure shall De deemed to extend the terms of tlris Agreement on smooth-to-month basis under Me same terms and corrddions herein except that (i) a Monthly License Fee shall be due on or before the first day of every calendar month during such month-to-month term in an amount equal to 150% of the MoMhty License Fee in effect for the last month of Ole Term (Holdover Fee"), such Holdover Fee to escalate annually on the anniversary of the Commencement Date by an amount equal to 8°/a of the Holdover Fee in eOed for the month immediately prim fo the month in which escalation takes place, and (ii) the month-to-month extension shall be terminable upon 15 days' prior written notice from either Licensor or Licensee to the other; provided, tawever, raOring centained herein shah grant Licensee the unilateral right to exend the Term of this Agreement after the expiration of the Term. In addition to the Manlhly License Fee payable to Licensor in the evert of an exension under this subsection 8(c), Licensee agrees to indemnify and hold Licensor harmbss from any Damages arising out of or in cennection with the extension, the operetbn of the Approved Equipment at the Tower Facility and Licensee's failure to perform all of its obligations under this Agreement at the termination or earlier expiration of this Agreement. 7. LIMITED COMMON EXPENSES. Licensee shah reimburse Licensor for Licensee's pro-rata share of all common expenses (the "Common Expensee'~ incurred by Licensor in the installation, operation, maintenance and repair of the Tower Facifily, including, but not limited to, the construction, maintenance and repair of a common septic system and field, insurance, common utllities and any and all other costs of operating and maintaining the Tower Factlity. Notwithstanding the foregoing, the cost and expenses associated wNh any Damage wFlictl is directly attributable to the acts or omissions of Licensee or Licensee's contractors shall be borne solety by Licensee. Licensee shall not be required to pay any share of costs or expenses incurred to replace the Tower. In the evert that licensee also licenses space within a building or shaker owned by Licensor on the Tcer Facility, Licensee shall also reimburse Licensor for its pro-reta share of all Common Expenses incurced for the operation, maintenance, repair and replacement associated with such building or shatter, including, without limitation, the physical structure of Ole building, HVAC system, and common utility expenses. In the event that Licensee is connected to a generator m back-up power supply owned by Licensor, Licensee shall also reimburse Licensor for its pro-rata share of all expenses incurred for lire operation, maintenance, repair and replacement asaodated with such generator, including, without limitation, fuel expenses. For the purposes of this section, a "pro-reta share" of costs and expenses shall be determined based on the number of licensees using the Tower Facility (or with respect to a shared shelter or building, the number of licensees using Licensor's shelter or building) on the Nrst day of the month in which an invoice is mailed to Licensee. Licensee shall reimburse Licensor for Common Expenses within 30 days folbwing receipt of an invoice from Licensor. . 8. 817E INSPECTION. Concurrent with Licensee's delivery of a fully executed Agreement to Licensor, and before the date of any subsequent modifications to or instalation of addi8onel Approved Equipment, Licensee shall pay L'xrensor the SOe Inspection Fee as defined on page 1 of this Agreement. Licensee acknowledges that any site inspection performed by Licensor of Licensee's installaton is for the sole purpose and genefm of Licensor and its affiliates, and Licensee shaft not infer horn or rely on any inspection by Licensor as assuring Licensee's installation complies wRh any Applicable Laws, that the installation was perfomted in a good, workmanlike manner or that such installation will not cause impermissible or unlawful interference. 9. LABELING. Licensee shall identify its Approved Equipment, including ifs equipment cabinets and coaxial cable (at the top and bottom of the Tower) (unless such cabinet is located in a building or cabinet owned by Licensee) by labels with Licensee's name, tooted phone number and date of installation. In the event that Licensee fails to comply with this provision and fails to cure such defidency within 10 days of Licensof s written notice of such failure, Licensor may, but is not obligated to, in add8ion to any other rights N may have hereunder, label the Approved Equipment and assess against licensee a fee of $1,500 which shall tre payable to Licensor upon receipt of an invoice therefor. Licensor shall not be responsible W Licensee for any expenses or Damages insured by Licensee arising from the intertupCKm of Licensee's service caused by Licensor, if Licensor is unable to identify the Approved Equipment as belonging to Licensee as a result of Licensee's failure to label such Approved Equipment. 10. IMPROVEMENT8 BY LICENSEE. 6 ECMk4l02x Rev. 02.21.09 LICENSOR SITE NAME /NUMBER: NOYACK, NY / 88113 LICENSEE SITE NAMEMUMBER: TBD I TBD (a) Installation and Approved Vendors. Prior to the commencement of any Work on tfie Tower Facility, Licensee shop submit to Licensor for review and approval, which approval shalt not be unreasonably vriUtheld, detailed plans and specifications axurately describing all aspects of the proposed Wwk. Licensee shall provide notice to Licensor rto less lfian 5 days prior b the date upon which Licensee intends to txxrlnlence Wok at the Tower Facility, together with a censtruction schedule, so Licensor has the opportunity to be present during any such Work. Licensee shall not cortanerrca Wwk om the Tower Facility until Licensor issues b Licensee a NTP. Licensor shah issue a NTP only upon request frwn Licensee and receipt of the following complete and accurate documentation: (1) evidence titat any contingendes set forth in the approval of Licensee's Applicaton have been satisfied; (2) evidence that Licensee has obtained all required governmental approvals inducting, but not limited to, zoning approvals, building permits, and any applicable environmental approvals inducting copies of the same; (3) a copy of the plans amd specificetons that have been approved by Licensor for the proposed equipment installation; (1) evidence that any contractors, other than Licensor, that will be performing the Work are on Licensors approved vendor list, with valid and wreM workers compensation and general liability insurance certificates on file with Licensor naming Licensor as an additional insured and which otherwise satisfy the insurance coverage requirements set forth in section 15(d) of this Agreement; and (5) a construction schedule. In no evert will a NTP be issued prior to the payment by Licensee of a Reocaton Application Fee when required pursuant to section 10(c) of this Agreement. Notwmhstanding anything to the contrary in this Agreement, Licensor reserves the right in its sole discretion, to refuse to permit any person or company to climb the Tower. (b) Structural Analysisllyderferenee Analysis. Prior to the commencement of any Work on the Tower Fadlity by or for the benefd of Licensee, Licensor may, in its reasonable discreton, perform w cause to be perforated a stnrctural analysis or require a pofessonal engineers certified letter to determine the availability of cepadty at the Tower Facility for the installation or modification of any Approved Equipment andlor additional equipment at the Lioansed Space by Licensee. Licensee agrees to remit payment to Licensor for all reasonable casts and expenses incurred by Licensor Tw such sUucturel analysis or professional engineers certified letter ("Structural Analysis Fee's within 30 days following receipt of an invoice from Licensor. The foregoing charge shall be at Licensors prevailing rates for the performance of same w the amount Licensors vendor is then charging Licensor, as applicable. In the event a structural analysis is performed after the execution of this Agreement but prior to the initial installation of the Approved Equipment, and such analysis indicates That the existing Tower cannot accommodate the proposed installation of Licensee's Approved Equipment thereon, licensor shall notify Licensee that mwlficetion of the Tower is required and irdorm Licensee of the fee Licensor will charge Licensee to complete such modification (which fee shall be a reasonable estimate of Licensors actual cost of making such modifications). Such modification shall become pert of the Tower Facility and be Licensors sale property. If Licensee elects not to pay such fee, and Licensee and Licensor do trot otherwise reach an agreement regarding the costs of such modification, Licensee may terminate this Agreement upon written notice to Licensor. Prior to the commencement of any initial or subsequent construction or installation on the Tower Faality by or for the benefd of Licensee andlor the modification of Licensee's Permitted Frequencies propagated from the Licensed Space, Licensor may sled to perform a shared site interference study ("3313°) and Licensee shall pay Licensor a fee of $1,600.00 per study ('S313 Fee"), as adjusted annually on the anniversary of the Commencement Date by a percentage rate equal to the Annual Escalator. This fee shall be payable at the time Licensee pays the Relocation Appkcation Fee where required pursuant to section 10(c) of this Agreement, or immediately upon receipt of notice Trom Licensor that Licensor has determined that a SSIS is required. In the event a SSIS is performed after the execution of this Agreement by Licensor but prior to the installation of Licensee's Approved Equipment, and such SSIS indicates that the proposed installation of Licensee's Approved Equipment on the Tower is acceptable, such an indication in no way relieves Licensee of its obligalione under sedan i 1 herein. (c) Equipmanh Raloeatfon, Modification, Removal. Licensor hereby grants Licensee reasonable access to the Licensed Space for the purpose oT installing and maintaining the Approved Equipmtent and its appurtenances. Except as otherwise provided, Licensee shall be responsible tor all site Work to be done on the Licensed Space or the Easement pursuant to this Agreement. Licensee shall provide all materials and shall pay for all labor for the construction, installation, operation, maintenance and repair of the Approved Equipment Licensee shall not cenatruct install or operate any equipment or improvements on the Tower Facility other than those which are described on ~ it A, alter the Permitted Frequencies, or aker the operation of lire Approved Equipment. Licensee shall submit an Application, utilizing Licensw's then curets form, to request the right to replace or modify its Approved Equipment, after the Permitted Frequences or increase the Ground Space, which Application shall be accompanied by a Reocetion Applicetion Fee. Licensor shall evaluate for approval the feasibility of Licensee's request which approval shall be in Licensors sole discretion. Licensee adrrtowledges that any such rlocetion or modfication of the Approved Equipment may resuk in an increase in the Monthly License Fee. An amendment to this Agreement shall be prepared to reflect each addition or modification to Licensee's Approved Equipment to which Licensor has given its written consent and the resulting increase in Me Monthly License Fee, K any. Licensee shall have the right to remove all Approved Equipment at Licensee's sde expense on or before the expiration or earlier termination of the License provided Licensee repairs any damage To the Tower Facility or the Tower caused 7 .....~..,e.,., ECMU41028 Rev. 02.24.09 LICENSOR SITE NAME /NUMBER: NOYACK, NY 188143 LICENSEE SITE NAME/NUMBER: TBD / TBD by such removal. Within 30 days of the expirelion or termination of this Agreement for any reason, Licensee shall: (i) remove the Approved Equipment and any other property of Licensee at the Tower Facility at Licensee's sole risk, cost, and expense; (ii) deliver the Licensed Space in substantially the same and in as good a condition as received (ordinary wear and tear excepted); and (iii) repair any damage caused by the removal d the Approved Equipment within 10 days of the occurtence of such damage. If Licensee fails to limey pay the Holdover Fee or does not remove its Approved Equipment within 30 days after the expiration or terminaian of this Agreement, (i) the Approved Equipment shall be deemed cenclusively and absolutely abandoned by Licensee and anyone claiming by, through, or under Licensee except for Hazardous Materials and waste and Approved Equipment containing Hazardous Materials and waste; and (ii) Licensor shall have me right to remove the Approved Equipment at Licensee's sole expense and dispose of such Approved Equipment in any manner Licensor so elects, and Licensee shall reimburse Licensor for its expenses upon demand without off-set. 11. RF INTERFERENCE/ l1SER PRIORITY. (a) Deflnitlons. For purposes of this section 11, the following capitalized terms shall have the meanings set forth herein: (i) Interference includes any performance degradation, misinterpretation, or loss of infonnatbn to a radio communications system caused by unwanted energy emissions, radiafions, or inductions, but shall not include permissible interference as defined by the FCC, and in addition, wHh regard to Unlicensed Frequencies, congestion. (il) Llcertsed Frequencies are those certain channels or frequendes of the radio frequency spectrum that are licensed by the FCC in the geographic area where the Tower Fadliry is located. (iii) A Licensed User is any user of the Tower Facility, including Ucensee, which transmits and/or receives Licensed Frequencies at the Tower Fadliry, but ony wtth respect to such Licensed Frequendes. (iv) A Priority User is any Licensed User of the Tower Fadliry that holds a proriy position in relationship to Licensee for protection from Interference, as determined in this section 11, which statue is subject to change as set forth herein. (v) A Subsequent User Is any user of the Tower Fadliry that holds a subordinate position in relationship to Licensee for protection from Interference, as determined in this section 11, which status is subject to change as set forth herein. (vi) Unlicensed Frequencles are those certain channels or frequendes of the radio frequency spectrum that are not licensed by the FCC and are available for use by the general public in the geographic area where the Tower Fadliry Is located. (vii) An Unlicensed User is any user of the Tower Facility, including Licensee, which transmtts and/or receives Unlicensed Frequencies at the Tower Facility, but only with respect to such Unlicensed Frequencies. (b) Infonnatlon. Licensee shall reoperate with Licensor and with other lessees, licensees or occupants of the Tower Fadliry for purposes of avoiding Interference and/or investigating daima of Interference. Upon request, Licensee, within 10 days of Licensee's request, shall provide Licensor with a list of Licensee's trensmtt and receive frequendes end Approved Equipment specifications necessary to resolve or Investigate daima of Interference. (c) Unlicensed Frequencies. NoNMhstanding any otFler provision contained herein, as among Licensor, Licensee and other users of the Tower or Tower Facility, (i) an Unlicensed User shall have no priority wtth rasped to any other FCC Unlicensed Users with reaped to Interference; and (ii) an Unlicensed UseYS rights and obligations with reaped to such Interference shall be determined and governed by FCC Rules and Regulations and any other Applicable Law. Licensor expressry disclaims any and all wartanties and accepts no responsibility for management, mediation, mkigafion or resolutan of Interference among FCC Unlicensed Users operetlng at the Tower Facility and shall have no 8ability therefor. (d) Licensed Frequenclea. Subject to FCC Rules and Regulations and other Applicable Law, the Parties acknowledge and agree that the accepted industry standard for priority protection from Interference between multiple Licensed Users has been based on the priority of occupancy of each user to another user of the Tower or Tower Facility, which priority has been based on the order of submittal of its collocation Applicaton by each user of the Tower or Tower Fadlity. Should Application of FCC Rules and Regulations and other Applicable Law not resolve any daima of Interference consistent with subsectbns 11(e), 11(f) and 11(g) below, as among Licensor, 8 .wr.~wwv.w ecMUaloza Rev. 02.24.09 LICENSOR SITE NAME I NUMBER: NOYACK, NY 188143 LICENSEE SITE NAMEINUMBER: TBD I TBD Licensee and other users of the Tower Facility, each Licensed Users priority shall be maintained so long as the Licensed User does not change the equipment and/or frequency that it is entitled to use al the Tower Fadlity at the time of its initial occupancy; and (ii) Licensee acknowledges and agrees that if Licensee replaces its Approved Equipment or alters the radio frequency of the Approved Equipment to a frequency range other than as described on page 1 of this Agreement, Licensee will bse its priority position for proted'an from Interference with regard to Approved Equipment operating at the new frequency in its relationship to other Licensed Users which are in place as of the date Licensee replaces its Approved Equipment or alters its radio frequency, consistent with this section 11. (e) Correction. (i) Licensee. Licensee agrees not to cause Interference with the operations of any other user of the Tower or Tower Fadlity and to comply with all other terms and provisions of this section 11 imposed upon Licensee. If Licensor determines, in its reasonable discretion based on standard and accepted engineering practices, that Licensee's Approved Equipment is causing Interference to the installations of Licensor or a Priority User, Licensee shall, within 48 hours of notficadon from Licensor, commence such actions as are necessary to mtigate or eliminate the Interference, with the exception of ceasing Licensee's operations. If Licensee cennct mitigate or eliminate such Interference wthin the 48 hour period, Licensor may file a complaint with the FCC (currently the FCC's Enforcement Bureau, Spectrum Enforcement Divison) or 'rf such other user of the Tower Fadlity which is subject to Interference from Licensee's Approved Equipment is a Priority User, then upon the request of such Priority User consistent whh Licensors contredual obligations owed to the PROrity User, Licensor may require that Licensee turn off or power down its interfering Approved Equipment and Doty power up or use such Approved Equipment during off-peak hours specified by Licensor in order to test whether such Interference continues or has been satiafactority eliminated. IT Licensee is unable to resolve or eliminate, to the satisfactbn of Licensor, such Interference within 30 days from Licensee's iMtial ndificatbn thereof, Licensee will irtmediately remove or cease operations of the interfering Approved Equipment. (ii) Licensor. Upon the request of Licensee, Licensor hereby covenants to take commercially reasonable efforts to prohibit a Subsequent User from causing Interference with the operations of Licensee to the extent Licensee is a Priority User pursuant this section 11. H Licensor determines, in its reasonable discretion based on standard and accepted engineering practices, that a Subsequent Users equipment is causing IMerfererrce to the installations of licensee, upon Licensee's request, Licensor shall, within 48 hours of request, commence such actions as are necessary to mhigate or eliminate the Interference, with the exception of ceasing Subsequent Users operations. (iii) Szovemment Users. Notwthstanding the foregoing, if another user of the Tower or Tower Fadlity is a govemmenlal entity, Licensor shall give such governmental entity written notice of the Interference within 5 Business Days of Licensors detertninatbn that such actbn is reasonably necessary. Licensor shall have the Rght to give the governmental entity 5 Business Days, or more as specified in the governmental site or occupancy agreement ar as required by Applicable Law, from the receipt of such notice prior to Licensor being required to take any adbns required by this subsection 11 (e) to cure such Interference. (f) FCC Raquiremsnb Regarding Interference. Nothing herein shall prejudice, IimH or impair Licensee's rights under Applicable Law, inducting, but not limited to, FCC Rules and Regulations to redress any Interference independently of the terms of this section 11. Notwithstanding anything herein to the contrary, Me provisions set forth in this section 11 shall be interpreted in a manner so as not to be incansisteM with Applicable Law, inducting, but not limited to, FCC Rules and Regulations and nothing herein relieves Licensee from complying with all Applicable Laws governing the propagation of radio frequencies and/or radio frequency interference. The Parties acknowledge that curteMly FCC Rules and Regulations govern the obligations of wireless telecommunication service providers with reaped to the operation of equipment and use of frequencies. Consequently, the provisions set forth in this section 11 are expressly subject to CFR, Title 47, including but not limited to Part 15, et seq, governing Radio Frequency Devices; Part 20, et seq, governing commerdal mobile radio services; Part 24, et seq, governing personal communications services; and PaR 90, et seq, governing private land rtrobile radio services. In addition, in accordance with good engineering practice and standard industry protocols, licensees employ a wide range of techniques and practices, inducting those involving the use of proper types of equipment as well Mose related to the adjustment of operating paremeters, in a mutually cooperative effort to identify and mitigate sources of Interference. The obligation M Part 20 licensees, including, but not limited to, private paging, specialized mobile radio services, cellular radiotelephone service and personal communications services, to avoid Interference is set forth in 47 CFR Part 90, Subpart N -Operating Requirements, §90.403(e). Claims of Interference are ultimately cognizable before the FCC's Enforcement Bureau, Spectrum EMorcement Division. Licensee shall observe good engineering practice and standard industry protocols, applying such commercially reasonable techniques as constRute best practices among licensees, in the depbyment d their frequendes and the operation of the Approved Equipment. ff Licensee deploys its frequendes or operates the Approved Equipment in a manner which prevents any other user of the Tower or Tower Facility from decoding signal imbedded in their licensed frequencies such that the Spectrum 9 .«.~er.e.., ECMk41028 Rev. 02.24.09 LICENSOR SITE NAME I NUMBER: NOYACK, NY 168143 LICENSEE SITE NAMEMUMBER: TBD I TBD Enforcement Division makes a determination that Licensee is the cause of the Interference and Licensee Tails or refuses to mitigate or eliminate the Interference within the time and manner proscribed by the Spectrum Enforcement Division, Licensee shall be defautl of this Agreement and the remedies set forth in section 22 shall apply. (g) Public Safety Interference. As of the Commencement Date, Licensor and Licensee are aware of the publication of FCC Final Rule, Private Land Mobile Services; 800 MHz Public Safety Interference Proceeding, Federal Register. November 22, 2004 (Volume 69, Number 224), Rules and Regulations, Page 678237853 ("Final Rule"). Claims of Interference made by or against users which are public safety entities shall be in compliance wtlh the Final Rule as and when eftedive, or otherwise in accordance with FCC Rules and Regulations. (h) AM Detuning. The parties acknowledge that the FCC Rules and Regulations govern the obligations of Licensee with rasped to the operation of the Approved Equipment. Consequentty, the provisions set forth in this Agreement are expressly subject to the FCC Rules and Regulations, incuding, but not limited to 47 C.F.R. 27.63, 22.371 and 73.1692. Licensee agrees, at Licensee's sole cost, to comply with the foregoing as well as any and all other FCC Rules, Regulations and public guidance relating to AM detuning as such provisions currently exist or are hereafter modfed. Licensee shall be fully responsible for any pre and/or post installation leafing for AM interference at the Tower Fadlity and for the installaton of any new detuning apparatus or the adjustmerd of any existing detuning apparatus that may be necessary to prevent adverse effects on the radiatlon pattern of any AM station caused by the installation of the Approved Equipment. Licensee shall provide Licensor with written proof of such compliance. In the event that Licensee determines that pre or post-installation testing for AM interference is not required at the Tower Fadlity, such a determinatlon shall be at Licensee's sole risk. If Licensee or Licensor receives a complaint of imerference from an AM broadcast station after the Approved Equipment is added to a Tower or a Tower is modified to accommodate Licensee, Licensee shall eliminate such interference within 30 calendar days of the receipt of such complaint. Licensee's failure to eliminate such interference wflhin such 30 day period shall constitute a defautl under this Agreement and Licensor shall have the right fo eliminate such interference at Licensee's expense. Licensee further agrees to indemnify Licensor in the event that Licensee's failure to comply with the FCC Rules and Regulations prior to installatlon/modficetion of the Approved Equipment resutls in any administrative investigation, proceeding or adjudication with reaped to Licensor. 12. SITE RULES AND REGULATIONS. Licensee agrees to cempty with the reasonable rules and regulations established from time to time at the Tower Facility by Licensor, which may be modified by licensor from time to time upon receipt by Licensee of such revised rules and regulations. Such rules and regulations will not unreasonably interfere with Licensee's use of the Licensed Space under this Agreement. 13. DESTRUCTION; CONDEMNATION. (a) DastrucUon. If the Tower or other portions of the improvements at the Tower Facility owned by Licensor are destroyed or so damaged as to materially interfere with Licensee's use and benefits from the Licensed Space, Licensor or Licensee shall be entitled to elect to cencel and terminate this Agreement on the date of such casualty and any unearned Monthly License Fee paid in advance of such date shall be refunded by Licensor to Licensee within 30 days of such termination date. Notwithstanding the foregoing, Licensor may elect, in its sole discrefion, to restore the damaged improvemertts, in which case Licensee and Licensor shall remain bound to the terms of this Agreement but Licensee shall be entitled to an abatement of the Monthly License Fee during the loss of use. If the Tower is so damaged that recenstrudion or repair cannot reasonably be undertaken without removing the Approved Equipment, then (i) Licensor may, upon giving written notice to Licensee, remove any of the Approved Equipment and inlenvpt the signal adiviry of Licensee, (ii) Licensee may, at Licensee's sole cost and expense, insteli temporary fadlities pending such reconstruction or repair, provided such temporary fadlities do not interfere with the construction, rebuilding or operaton of the Tower, (iii) Licensor agrees to provide Licensee atlernative apace, 'rf available, on the Tower or at the Tower Fakility during such reconstructloMrepair period and (iv) should Licensor not substamially restore or replace the Tower in a fashion sutr~ient to allow Licensee to resume operefions thereon within 8 momhs of the date of casualty, provided that such 6 month period shall be automatically edended for so long as Licensor has commenced and diligently continues to restore or replace such Tower, and Licensee's operation has been materially disrupted for 60 or more consecutive days, then Licensee, upon 30 days' prior written notice to Licensor, may terminate this Agreement. (b) Condemnation. If the whole or any substantial part of the Tower Facility shall be taken by any public authority under the power of eminent domain or in deed or conveyance in lieu of condemnation so as to materially interfere with Licensee's use thereof and benefits from the Licensed Space, then this Agreement shall terminate on the part so taken on the date of possession by such authority of that part, and Licensor or Licensee shall have the right to terminate this Agreement and any unearned Monthly License Fee paid in advance of such termination shall be refunded by Licensor to Licensee within 30 days following such termination. Notwithstanding the foregoing, Licensor may elect to rebuild the Tower or other improvements affected by such condemnation at an atlemate 10 ECMR41028 Rev. 02.24.09 LICENSOR SITE NAME /NUMBER: NOYACK, NY 188143 LICENSEE SITE NAMEINUMBER: TBD I TBD location or property owned, leased or managed by Licensor, in which case Licensee and Licensor shall remain bound hereby. Upon such rekfcation of the Tower or improvements, the Licensed Space shall be modfied to indude the new Tower or improvements and the property on which the same are located and this Agreement shall be amended accordingly to clarify the rights of Licensor and Licensee with reaped to the Licensed Space. Licensee agrees not to make a daim to the condemning authority for any condemnation award to the extent such daim shall diminish or affect the award made to Licensor with regard to such condemnation. (c) License Fsa Ababment The Monthly License Fee with respell to the affected Tower Fadlity shall be abated during any period that the Tower has nd been restored following en event descrilled in suhsedions (a) or (b) above so long as Licensee is unable to continue to operate from a temporary location at the property during any period of restoration. 14. COMPLIANCE WITH LAWS. Licensor shall be responsible for compliance with any marking and lighting requirements of the FAA and the FCC applicable to the Tower Facility, provided that if the requirement for compliance results from the presence of the Approved Equipmerd on the Tower, Licensee shall pay the costs and expenses therefor (inducting any lighfing automated alarm system so required). Licensee has the responsibility of carrying out the terms of Licensee's FCC license with rasped to tower IigM observation and notifxation to the FAA if those requirements imposed on licensee are in excess of those required of Licensor. Notwithstanding anything to the comrery in this Agreement, Licensee shall at all times comply with all Applicable Laws and ordinances and all rules and regulations of munidpal, state and federal governmental aulhatties relating to the installation, maintenance, Vocation, use, operation, and removal of the Approved Equipment and other atteralions or improvements authorized pursuant to the provisions of this Agreemem. 1S. INDEMNIFICATION; INSURANCE. (a) Mutual Indemnity. SubJsct to the mutual waiver of subrogatlon ast foRh in section 27, Licenses and Licensor each Indemnfes fhe other against and holds the other harmless from any and all costs, demands, Damages, suits, expenses, or causes of actlon pncluding reasonable altomeys fees and court cosh) which arise out of the use and/or occupancy of the Licensed Space by the IndemnHying Party. This Indemnity does not apply to any Claims arising from dre gross negligence or IMenBonal mlawnduct of the Indamnifed Party. (b) Llmha on Indemniflcation. NeitMr Party shall be responsible or liable to any of the foregoing Indemnified Parties for any Damages arising from any claim W the extent atuibutabla to any acts or omissions of other licensees a users occupying the Tower Facility or for any strucWrel or power failures or desfruc8on or damage to the Tower Facility except to the extent caused by the sole, Joint, or concurrent gross negligence or willful misconduct of such Party. (c) Survival. The provisions of this section 15 shall survive the axpira6on or earlier termination of this Agreement with reaped to any events occurring on or before expiratan or termination of same whether or not Claims relating thereto are asserted before or after such expiration or termination. (d) Insurance. Licensor and Licensee shall keep in full force and effect, during the Term of this Agreement, insuretrce coverage in accordance with Appendix II attached hereto. 18. LIMITATION OF PARTIES' {.IA6ILITY. NEITHER LICENSOR NOR LICENSEE SHALL 8E RESPONSIBLE FOR, AND HEREBY WAIVES ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED RESULTING FROM (i) LICENSEE'S USE OR LICENSEE'S INABILITY TO USE THE TOWER FACILITY, OR (ii) DAMAGE TO THE OTHER'S EQUIPMENT. If Licensor shall fail to perform or observe any term, condition, covenant or obliga8on required to be performed or observed by it under this Agreement or is charged with an indemnity obligation trereunder, and 'rf Licensee shall, as a consequence thereof, recover a money judgment against Licensor (whether compensatory or punitive in nature), Licensee agrees that tt shall look solely to Licenser's right, title and interest in and to the Tower Fadlity and the Tower for the cdlection of such judgment, and Licensee further agrees that no other assets of Licensor shall be subject to levy, execution or other process for the satisfaction of licensee's judgment, and that Licensor shall not be personally liable for arty defidency. 17. DISCLAIMER OF WARRANTY. LICENSOR HEREBY EXPRESSLY DISCLAIMS ALL WARRANTlE3 OF MERCNANTA8ILITY AND FITNESS FOR A PARTICULAR PURPOSE ASSOCIATED WITH THE TOWER FACILITY OR THE TOWER. LICENSEE HEREBY ACCEPT3 THE TOWER FACILITY "AS IS, WHERE IS, WITH ALL FAULTS." 18. NOTICES. AN notices, demands, approvals, requests and other communications shall be in writing to such Pally at the address listed in the introductory paragraph of this Agreement (and in each case, in the event of notice to Licensor, with a copy of such notice to Americen Towers, Inc., 118 Huntington Avenue, Boston, MA 02116, Attentlon: Generel 11 n~.rw,nuu., ECM#4I028 Rev. 02.2/09 LICENSOR SITE NAME /NUMBER: NOYACK, NY /88143 LICENSEE SITE NAMEMUMBER: TBD! TBD Counsel) or at such other address as such Party shell designate by ratite to the other party hereto in accordance with this section 18 (the "Notlee Add?ess") and may be peaaonaby delivered; mailed, via Unhed States certfied mail, return receipt requested; or transmitted by overnight courier for next Business Day delivery, and, if not delivered peasonaly, shall l1e deemed to be duly given Of made 2 Business Days after deposit with the applicable Cartier or courier. Notices will be deemed to have been given upon either receipt or rejection. NotwiMstanding the foregoing, (i) any notice that is given by a party may be given by the attorneys for that party end shall be deemed effective for all purposes herein, and (iii) only notices, letters, documents, or instruments threatening to declare or declaring such addressee or recipient in default under this Agreement shall be required to be sent to the attorneys representing such addressee or recipient, if the name and address of such attorney is provided for herein. 18. ASSIGNMENT; SUBLEASING. Licensee may not assign this Agreement as a whole, or any portion of Licensee's tights, ti0e and interests hereunder without Licensors prior written consent. In no event may Licensee sublet, sublease, or permit any use of the Tower Facility or Licensed Space by any other party. Any permitted assignee shall expressly assume, and become bound by, all of Licensee's obligations under this Agreement. Licensor may freely assign, transfer, or sublease this Agreement and, in such event, Licensor shall be relieved of all of its obligations under this Agreement from and after the date of such assignment or transfer. Licensee shall pay Licensor a fee of $500.00 (which fee shall increase annually on each anniversary of the Commencement Date by a percentage rate increase equal to the Annual Escalator) in each instance in which Licensee requests Licensor to consent to an assignment of this Agreement or in which Licensee seeks an estoppel certficete, nondislurbarlce agreement, subordination agreement or other similar agreement to defray the adminlstretive cast incurred by Licensor to process such requests, prepare and process any necessary documentation, and modify its database and other information systems to refiact any such agreement. Such fee is due upon submission of Licensors request and is hereby deemed fully earned by Licensor upon receipt. Notwithstanding anytlling to the centrery, Licensor may condition its consent to any assignment, on among other things, (i) requiring that the assignee execute a new forth of license agreement so brig as the Monthly License Fee and Initial and Renewal Terms of such agreement are consistent with those set forth in this Agreement, end (ii) requiring the assignee to demonsfrale that R maintains at the 8me of such assignment, ea evidenced by current financal statements provided to Licensor, a financial position reasonably demonstrafing the ability of such assignee to meet and perform the obligations of Licensee hereunder through the unexpired balance of the then current Initial Tenn or Renewal Term. Any purported assignment by Licensee in violation of the lemts of this Agreement shall be void. This Agreement shall be binding upon the successors and permitted assigns of both Parties. 20. SUBORDINATION TO GROUND LEASE. The Parties acknowledge and agree that in the event Licensors rights in the Licensed Space and/or any part of the Tower Fadlity is derived in whole or part pursuant to an undedying lease, sublease, permit, easement or other right of use agreement (a 'Ground Lease', all terms, conditions and covenants contained in this Agreement shall be specifically subject to and subordinate to the terms and cenditons of the applicable Ground Lease. In the event that arty of the provisions of the Ground Lease are in conflict with any of the provisions of this Agreement (other than those provisions relating to the length of term, lertnination rights or financal considerefion), the terms oT the Ground Lease shall confrd. Further, Licensee agrees to comply with the terms of such Ground Lease as applicable to the access and occupancy of the Licensed Space. Notwithstanding anything contained in this Agreement to the contrary, 'rf the Ground Lease expires or is terminated for any reason, this Agreement shall terminate on the effectlve date of such termination and Licensor shall have no liability to Licensee as a result of the termination of this Agreement. Licensor is under no obligation to eMend the term of or renew the Ground Lease. Licensor shall give Licensee written notice of such termination or expiraton of this Agreement as a result of the termination or expiration of the Ground Lease as soon as practicable. Unless prohibited by the terms of such Ground Lease, upon Licensee's written request, Licensor shall provide a copy of any applicable Ground Lease with the economic terms and other terms that Licensor deems reasonably confidential redacted. 21. DEFAULT. The occurrence of any of the following instances shall be considered to be a default or a breach of this Agreement by Licensee: (i) any failure of Licensee to pay the Monthly License Fee, or any other charge for which Licensee has the responsibility of payment under this Agreement, within 10 Business Days of the date following written notice to Licensee from Licensor, or its designee, of such delinquency, it being understood, however, that Licensor is obligated to provide such ratite only two times in each calendar year, and the third instance of the failure to pay the Monthly License Fee or any other charge shall be an immediate defauh without notice to Licensee if not paid within 10 Business Days of the date when due; (ii) except for a breach of Other Provisions 'A° for which the cure period is set forth in subsection (iv) below, any failure of Licensee to perform or observe any term, covenant, provision or condition of this Agreement which failure is not cortected or cured by Licensee within 30 days of receipt by Licensee of written notice from Licensor, or its designee, of the existence of such a default; except such 30 day cure period shall be extended as reasonaby necessary to pemM Licensee to complete a wre so long as Licensee commences the cure within such 30 day cure period and thereafter continuously and diligently pursues and completes such are; (iii) failure of Licensee to abide by the Interference provisions as set forth in section 11; (iv) Licensee breaches Other Provisions "A' and Licensee fails to cure this breach within ten (10) days of Licensors written notice to Licensee, or its designee of the existence of such default of Other Provisions "A"; (v) Licensee shall become bankrupt, insolvent or file a voluntary petlfion in bankruptq, have an involuntary petition in bankruptcy filed against Licensee which cannot be or is not dismissed by 12 wwr w.e.., EcMaamzs Rev. 02.24.09 LICENSOR SITE NAME I NUMBER: NOYACK, NY 188743 LICENSEE SITE NAMEMUMBER: TBD I TBD Licensee within 50 days of the date of the filing of the involuntary petition, file for reorganization or arrange for the appointment of a receiver or trustee in bankruptcy or reorganization of all or a substantial portion of Licensee's assets, or Licensee makes an assignment for such purposes for the benefit of creditors; (vi) this Agreement ar Licensee's interest herein or Licensee's interest in the Tower Fatality are executed upon or attached; (vii) Licensee commits or fails to perform an act which results in a default under or nonconformance with the Ground Lease by Licensor and the same shall not be cured within 5 Business Days (or such shorter time es permitted under the Ground Leese to cure) of the date following written notice to Licensee from Licensor, or its designee, of such defautl; or (viii) the imposition of any lien on the Approved Equipment except as may be expressy authodzed by this License, or an attempt by Licensee or anyone Gaiming through Licensee to encumber Licensors interest in the Tower Fatality, and the same shall not be dismissed or otherwise removed within 10 Business Days of written notice from Licensor to Licensee. 22. REMEDIES. In the event of a default or a breach of this Agreement by Licensee and after Licensee's failure to cure the same within the time allowed Licensee to cure such default, tl applicable, then Licensor may, in addition to all other rights or remedies Licensor may have hereunder at law or in equity, (i) tertninale this Agreement by giving written notice to Licensee, stating the dale upon which such termination shall be effective, accelerating and dedertng to be immediately due and payable the then present value of all Monthly License Fees and other charges or fees which would have otherwise been due Licensor absent a breach of the Agreement by Licensee, discounted by an annual percentage rate equal to 5°'0, (ii) terminate electrical power to the Approved Equipment, and/or (iii) remove the Approved Equipment without being deemed liable for trespass or conversion and store the same at Licensee's sole cost and expense for a perod of 30 days after which the Approved Equipment, other than Hazardous Materials, will be deemed cerxiusively abandoned 'd not Gaimed by Licensee. Licensee shall pay all reasonable attamey's fees, court costs, removal and storage fees (inGuding any damage caused thereby), and other items of cost reasonably incurted by Licensor in recovertng the Monthly License Fee or other fee or charge. Licensee shall not l>e permitted to Gaim the Approved Equipment until Licensor has been reimbursed for removal and storage fees. Past due amounts under this Agreement will bear Interest from the date upon which the past due amount was due until the date paid at a rate equal to 18°k per annum, or a< a lower rate if required by law in the state in which this Agreement is to be performed. In addition, Licensee shall be assessed a late payment fee equal to 259'0 of the then-current Monthly License Fee for any payment or reimbursement due to Licensor under this Agreement which is overdue by ten (10) days or more and such fee shall be assessed for each 30 day period thereafter that any such amount (or portion thereof) remains unpaid. 23. GOVERNMENTAL APPROVALS; PERMITS. In the event that any governmental permit, approval or authorization required for Licensors use of, operation of, or right to license space to Licensee at the Tower Facility is terminated or wtthdrawn by any govemmental authority or third party as part of any govemmental, regulatory, or legal proceeding, Licensor may terninale this Agreement. Licensee hereby agrees that in the event of a govemmental or legal order requiring the removal of the Approved Equipment from the Tower, the modification of the Tower, or the removal of the Tower, Licensee shall remove the Approved Equipment promptly, but in no event later than the dale required by such order, at Licensee's sole cost and expanse. Licensor shall cooperate with Licensee in Licensee's efforts to obtain any permits or other approvals that may be necessary for Licensee's installation and operation of the Approved Equipment, provided that Licensor shall not be required to expend any funds or undertake any liability or obligation in connection with such cooperation. Licensor may elect to obtain such required approvals or permits on Licensee's behalf, at Licensee's sole cost and expense. In no event may Licensee encourage, suggest, partitapete in or pertntl the impostion of any restrictions or addtlional obligatrons whatsoever on the Tower Fatality or Licensors current or future use or ability to license space at the Tower Facility as part of or in exchange for obtaining any such approval or pertnR. In the event that Licensee's shaker or cabinets are installed above athird-party or Licensor-owned shelter or building, Licensee shall be solely responsible for obtaining any required approvals, or permits in connection with such shelter or cabinet installation, excepting the consent of other users at the Tower Fatality and/or the ground landlord which shall remain the sole responsibility of Licensor where required. 24. REPLACEMENT OF TOWERIRELOCATION OF APPROVED EQUIPMENT. (a) Replacement of Tower. Licenser may, at its election, replace or rebuild the Tower or a portion thereof. Such replacement will (i) be at Licensors sole cost and (e) not result in an interruption of Licensee's communications services beyond that which is necessary to replace the new Tower. If Licensee, in Licensee's reasonable discretion, cannot operate the Approved Equipment from the existing Tower during such replacement or rebuild of the Tower, Licensee may establish, at Licensee's sole cost, a temporary facility on the Tower Facility to provide such services as Lioensee deems necessary during any such construction by Licensor so kxrg as adequate space is then availeWe. The location of such temporary fatalities shall be subject to Licensors approval. The License Fee due hereunder shall be abated for any period during which Licensee is prevented from broadcasting from the existing Tower due to such replacerent or rekrcation. At the request of either Parry, Licensor and licensee shall enter into an amendment to this Agreement to Garity the rights of Licensor and Licensee to the new Tower Fata6ry. (b) Relocation of Approved Equipment In the event another Paying Carrier (as hereinafter defined) desires to occupy Me space on the Tower (which inGudes any necessary vertical separation as determined by Licensor) 13 ECM#41028 Rev. 02.24.09 LICENSOR SITE NAME I NUMBER: NOYACK, NY / 88143 LICENSEE SITE NAMFJNUMBER: TBD I TBD where Licensee's Approved Equipment is Men bcaled (the 'Trigger Condition'), Licensor reserves the right to require Licensee to decide wheMer to (i) terminate this Agreement, (ii) relocate Licensee's Approved Equipment boated at the Tower Facility, at Licensee's sole cost and expense, to another antenna mount height on the Tower, or (iii) increase Me MonMly License Fee to that which would initially be paid by the Paying Cartier ('Paying Carrier Rate, all in accerdance with the terms and provisions provided in Mis section 24(b). Upon Me Trigger Condition occurrtng, Licensor may notify Licensee in writing ("Relocation Notice") that Me Trigger Condition has occurred and if other spaces or antenna mount heights are available to accommodate Licensee's Approved Equipment on Me Tower (without the requirement of any improvements to Me Tower by Licensor), indicate which other spaces or antenna mount heights are so available and, also, indicate the Paying Cartier Rate. Within 10 Business Days of Licensee's receipt of the Relocation Notice, Licensee will be required to iMortn Licensor in writing of its election either to (A) increase the Monthty License Fee to Me Paying Canier Rate (which would thereafter be subject to escalation d Me Monthly License Fee generally as otherwise provided in Mis Agreement) and continue b occupy the same apace or antenna mount height on Me Tower; (B) provided other spaces or antenna mount height are available on Me Tower, relocate Licensee's Approved Equipment to one of the other such spaces or antenna mount height as spedfied in the Reklcation Notice; or (C) remove Licensee's Approved Equipment from Tower and terminate this Agreement. If Licensee elects option (A), Men such election shall be a%ective and the Monthty License Fee shall increase e%edive upon the eleventh Business Day after Licensee's receipt of Me Relocation Notice without further ad or deed. If Licensee sleds option (B), if such option is available, and notifies Licensor that it elects to relocate hs Approved Equipment to a particular antenna mount height or space spedfied in the Relocation Notice, Licensee shall have 45 days of Licensee's receipt of the Relocetion Notice to relocate its Approved Equipment on the Tower to such elected space or antenna mount height at Licensee's sole cost and expense, such rebcation to be subject to all farms and conditions of Mis Agreement otherwise imposed. % Licensee sleds or is deemed to eleG option (C), Licensee will remove its Approved Equipment from Me Tower Fadlily within 45 days of Licensee's receipt of Me Relocation Notice, such removal to be subject to all terms and cend'dions of this Agreement otherwise imposed. If Licensor fails to receive notice from Licensee within such 10 Business Day period as to whether Licensee elects option (A), (B) or (C), then Licensee shall be deemed conclusively to have elected option (C). If Licensee sleds option (B) or elects or is deemed to elect option (C), % Licensee fails to relocate or remove the Approved Equipment within such time period as required above, TIME BEING OF THE ESSENCE, then the Approved Equipment shall be deemed conclusively and absolutely abandoned by Licensee and anyone claiming by, Mrough, or under Licensee except for Hazardous Materials and waste and equipment containing Hazardous Matedals and waste, whiclr shall be removed by Licensee from the Tower Fatality immediately; and Licensor shall have the right to remove the Approved Equipment at Licensee's sole expense and dispose of such Approved Equipment in any manner Licensor so elects, and Licensee shall reimburse Licensor for its expenses upon demand wthout o%set. For purposes of this section, a "Paying CaMet is a paying Cartier or potential licensee of Licensor which, Mrough a written Application or offer, o%rs to monetarily compensate Licensor for the right to use the space on the Tower included in the Licensed Space. (c) Tower Removal: If during Me term of this Agreement Licensor determines based on engineering structural standards generally applied to communications lowers Mat the Tower Is or has become structurally unsound such that pursuant to generally accepted industry safety standards the Tower or a portion thereof must be removed, Men, upon 90 days pdor written ndice to Licensee, Licensor may, in its sde discretion etlher (i) remove the Tower and terminate Mis Agreement a%dive as of Me date of such removal, or (ii) modiy the Tower and relocate Licensee's Approved Equipment to an ahemative location on the modified Tower. If Licensee and Licensor are nd able to agree on an alternative location on the modified Tower for the installation of Licensee's Approved Equipment within Me foregoing 90 day notice period, then Licensee or Licensor may elect to terminate the Agreement. 25. EMMISIONS. If antenna power output ("RF Emissions") is presently or hereafter becomes subject to any restrictions imposed by the FCC or other governmental agency for RF Emissions standards on Maximum Permissible Exposure ("MPE' limits, or'd the Tower Fatality otherwise becomes subject to federal, state or bcel rules, regulations, restrictions or ordinances, Licensee shall comply with Licensor's reasonable requests for modifications to the Approved Equipment which are reasonably necessary for Licensor to comply with such limits, rules, regulations, restrictions or ordinances and Licensor shall use commeroialty reasonable efforts to cause all other licensees of the Tower Fatality to promptly comply. If Licensor requires an engineering evaluation or other power density study be performed to evaluate RF Emissions compliance with MPE limits, then ant reasonable costs of such an evaluation or study shall be paid proportionately by Licensee and all other licensees of the Tower within 30 days of Licensor's request Merefor. If said study or a study sponsored by any governmental agency indicates that RF Emissions at the Tower Fatality do not comply with MPE limits, then Licensee end Licensor, each for itself, shall immediately lake any and all steps necessary to ensure Mat it is individually in compliance with such limits, up to and inGuding cessation of operation, until a maintenance program or oMer mitigating measures can be implemented to comply with MPE and in addition, Licensor shall use cemmertaally reasonable a%rts to reuse all other licensees of Me Tower to take similar steps necessary to ensure Mat Mey are individually in compliance wiM such limits. 14 ..~..~,..v.., ecMaalo2s Rev. 02.24.09 LICENSOR SITE NAME! NUMBER: NOYACK, NY 188143 LICENSEE SITE NAMEMUMBER: TBD I TBD 28. ENVIRONMENTAL. Licensee covenants that tl will not use, store, dispose, or release any Hazardous Substances on the Tower Facility in violation of Applicable Law. Licensee agrees to indemnify and save harmless Licensor against any and all Claims, liabilities, causes of action, Damages, orders, judgments, and dean-up costs arising from Licensee's breach of any the covenants contained in this section 26. The obligations of Licensee to indemnify Licensor pursuant to this section 26 shall survive the termination or expiration of this Agreement. 27. SUBROGATION. (a) Walvar. Licensor and Licensee waive all rights against each other and any of their respective consutlanls and contractors, agents and employees, for Damages caused by perils to the exent covered by the proceeds of the insurance provided herein, except such rights as they may have to the insurance proceeds. All insurance poicies required under this Agreement shall contain a waiver of subrogation provison under the terms of which the insurance certier of a Party waives all of such carrier's rights to proceed against the other Party. Licensee's insurance polices shall provide such waivers of subrogation by endorsement. Licensee shall require by appropriate agreements, written where legalty required for validtly, similar waivers from Its contractors and sulxaMredors. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would ctherwise have a duty of indemnification, contractual or dherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. (b) Mutual Release. Nolwtlhstanding anything in this Agreement to the contrary, Licensor and Licensee each release the other and Ns respective affiliates, employees and representatives from any Claims by them or any one chiming through or under them by way of suMogation or otherwise for Damage to any person or to the Tower Fadlity and to the fixtures, personal property, improvements and alterations in or on the Tower Facility that are caused by ar result from risks insured against under any insurance policy carried by each and required by this agreement, provided that such releases shall be effective onty if and to the extent that the same do not diminish or adversely affect the coverage under such insurance policies and only to the extent of the proceeds received from such policy. 28. GOVERNING LAW. This Agreement shall be governed by the laws d the state in which the Tower Fadlity is located, with the exception d its deice of laws provisions. If any provision of this Agreement is found invalid or unenforceable under jutlicial decree or decision, the remaining provisions of this Agreement shall remain in full force and effect. Any approval, consent, dedsion, or election to be made or given by a Party may be made or given in such Party's sole judgment and discretlon, unless a different standard (such as reasonableness or good faith) is provided for e~lidtly. 29. FINANCING AGREEMENT. Licensee may, upon written nctice to Licensor, mortgage or grant a security interest in the Approved Equipment to any such mortgagees or holders of security interests inducting their suaessors and assigns. No such security interest shall extend to, afled or encumber in any way the interests or property of Licensor. 30. MISCELLANEOUS. Upon Licensors written request, Licensee shall promptly famish Licensor with complete and accurate informatlon in response to any reasonable request by Licensor for information about any of the Approved Equipment or utilities utilized by Licensee at the Tower Facility or any of the channels and frequendes utilized by Licensee thereon. In the event that this Agreement is executed by Licensor, fta Affiliates or any trade name utilized by Licensor or its Affiliates and such signatory does rat hdd the real Tower Facility or leasehold interest in the afreded Tower Fadlity, the execution of this Agreement shall be deemed to have been properly executed by Licensor or Licensors Affiliate which properly holds such interest in the affected Tower Facility. Upon the termination or expiration or this Agreement, Licensee shall immediately upon the request of Licensor tleiiver a release of any instruments of rewrd evidendng such Agreement. Notwithstanding the expiration or earlier termination of this Agreement, sections 15, 16, 17, and 26 shall survive the expiration or earlier termination of the Agreement. No waiver of any of the provisions of this Agreement shall wnstitute a waiver of any other provision herein (whether or not similar), nor shall such waiver constitute a continuing waiver unless expressy agreed to in writing by the affected Party. This Agreement constitutes the entire agreement of the Parties hereto concerning the subject matter herein and shall supersede all prior otters, negotiations and agreements, whether written or oral. No revision of the Agreement shall Ue valid unless made in writing and signed by authorized represematives of both Parties. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute but one inslrumem. Tha Parties agree that a scanned or electronically reproduced copy or image d this Agreement shall be deemed an original and may be introduced or submitted in any action or proceeding as a competent evidence of the execution, terms and existence of this Agreement notwithstanding the failure or inability to produce or tender an original, executed counterpart of this Agreement and without the requirement that the unavailability of such original, executed counterpart of this first be proven. 31. CONFIDENTIALITY. NeRher Party shall use the others name, service mark or trademark in any public announcement or advertisement without the prior written consent of the other Party, which may be withheld in such PaKy's sole and absolute discretion. IS ECM#41028 Rev. 02.24.09 LICENSOR SITE NAME /NUMBER: NOYACK, NY ! 8a143 LICENSEE SITE NAMEMUMBER: TBD I TBD The offer of license expressed In this Agreement shall automatically expire and become void N two unaltered counterparts of this Agreement, exocuted by Licemee, are not delivered to Licensor within 30 days of the Effective Date. ATTACHED EXHIBITS: Exhibit A: List of Approved Equipment and location of the Licensed Space Exhibit B: Site Drawings indicating the location of Ground Space for Licensee's equipment shelter or space in Licensors building (as applicable) Exhibit C: As-Built Drawings or Construction Drawings to be attached within 45 days after Commencement Date in accordance with Section 3 Appendix I: Definitions Appendix II: Insurance 16 EcMnalozs Rcvv. 02.24.09 LICENSOR SITE NAME I NUMBER: NOYACK, NY 188143 LICENSEE SffE NAMEMUMBER: TBD I TBD Exhibit A List of Approved Equipment and location of the Licensed Space Inttiab: I ECMM41028 Rev. 02.24.09 Exhibit A Customer Neme; ATC Asset Nama: ATC Aesat TOWN OF SOUTMOLO NOYACK 88143 Customer 8ns Name: Customer 8ne q: WA N/A Tmar Lace Ane 84 Ft: 0.00' Primer CrurNauma Lspe Arse L: W: N: Sq. Ft OubMe PHmw Lena Area NIA WA NIA Sp. FF. WA GenM1al: N/A Capadty(KYY(: N/A FuN Tarn 8iu(ysl(: WA Fuel Type: N/A FuN Tank BslWCk(rsdus(: WA Power PmvMen By: UNity Company Olrect EMehk Sve. (ampalvolb(: N/A Teko/1Merconnect: NIA TYW: TXR2X Orrsniity: 1 7X Powsr(wansl: 20 ERP(watlsi: BO TYM DIPOLE NIA WA WA N/A N/A tMnubHUnr Telewave Nlp WA Wp N/A WA Morb1K ANT450D6-9 NIA WA WA WA N/A Dlmenaione NxWxD 72'x13.5"x2" NIA N/A WA WA WA Weighl(Ibe.) 18.0 NIA NIA N/A NIA WA CoOtb11 Tower N/A N1A WA N/A NIA RAD Center AGL 285.0 NIA N/A WA NIA NIA Antenna Tlp NepM 2980' NIA NIA WA WA NIA AMSnne Base lNleM 2920' NIA NIA N/A WA N/A MournType Plaporm wim N/A NIA WA NIA N/A Handrails Dusntity 1 WA NIA WA WA WA ABmuths/Dir.M 39 WA N/A N!A N/A WA ReMNbn OueM. Par 1 WA NIA WA NIA N/A AxImuNJBeclor TXIRX Frpwnry MHz NIA NIA N/A NIA WA UMb TX Fn9wrrcy 483.65 N/A WA N/A WA WA NX Ffequency 486.85 N/A NIA WA WA WA Uah1p IMliunsW No NIA NlA WA NIA NIA Frpuenraaa7 AMMaa Gain 8-9 WA NIA WA N/A NIA Tofal a of Llws 1 N/A N/A NIA WA N/A Lhre Guant. Per 1 WA NIA WA N/A N/A Axsnuthl8aclor LMe Type Ccax N/A NIA WA N!A N!A Line DlametarBW 15/8"Coax N/A NIA NIA WA NIA Line CoMlyuralfon N/A NIA NlA N/A N!A N/A 95901 LICENSOR SITE NAME /NUMBER: NOYACK, NY !88743 LICENSEE SITE NAMEMUMBER: TBD I TBD Exhibit B Site Drawing indicatlng the location of Ground Space for Licensee's equipment shelter or space in Licensor's building (as applicable) Licensee shall not commence installation until Licensor has approved in writing said drawing and attached it hereto. IniBals: I ECMN41028 Rev. 02.24.09 ,aaiawRa °TMR»:~„ Y.T,Nad11! }.r-Y~fY-r + §a V fray . aR~oi.a ~.~eRt~~ eJn. r. ® .A YR.O W~ Uiaa ~ 881J3 ~^\I u.r~ ialw mar V b NOVACK s N%w~ i ~r°-per' NEW VOPo( - unaa •in Mor+. YoDIY.iof•-Y lmNRmf yNa.pN INAII flMi Y14 "aA"' OryIY~ h1d[ fOl MD- ILI. ROW ~ 9 Xq ~ tOt •b TYIY ' f a a s ~ y srnn . Rou.im RM c c~ena* r-f iiafo' ~f•afY Y~Y~~a ~ ;~~a cs redf lamcclwar oiYao area .Ym av.. a airceweu aeRVee mc. m.e~aaofl aw areas' a.Y s f e, sre i an aRaW~mav a afao ffr~ oGNf YN°~a onRKBfItlE ~.ROOY Mfr 1ROXR~ a ax RRna Y NflER RM]l q iUL YDI RI~OI4a9 mW a. fan W TEIFFILVEIQWV ' Y-N• R.IXY>%~ YaY m reffnacaNaa i Rlpaf s.Q iwf inNferORYER Md wnreiv ~Y-ff• pavYVNfmvvsan ry LICBIlEO6VNFIOt ~C SWF rfl.Yi allallYliWf f0 0 10 A a~f YaR ty, ~ SP-1 0 'O 1 Wli - A 1iE1 LICENSOR SITE NAME I NUMBER: NOYACK, NY 188143 LICENSEE SITE NAMEMUMBER: TBD I TBD Exhibit C As Built Drawings or Construction Drawings To be attached hereto within 45 days after the Commencement Date. ECMN41028 Rev. 02.24.09 LICENSOR SITE NAME I NUMBER: NOYACK, NY 198143 LICENSEE SITE NAMEMUMBER: TBD / TBD Appendix 1 Defined Terms Affllhte(s): Any corporation, partnerehip, limited liability company or other enl'dy that (i) is controlk;d directly or indiredty (through one or more subsidiaries) by Licensee , or (ii) is the successor or surviving entity by a merger or consolidation of Licensee pursuant to Applicable Law, (iii) purchases aN or substantially all of the assets of Licensee. For purposes of this defindion, "con6loP means the possession of the right through the ownership of 50% or more of the shares with vding rights to effectively direct the business decisions of the subject entity. Agreement: defined in the introductory paragraph. Annual Escalator: defined in section IV on page 1. Applicable Law: AN applicable statutes, ordinances, laws, regulations and directives of any federal, state or local gpvemmeMal unit, authority or agency having jurisdiction over a Licensed Space or affecting the rights and obligations of Licensor or Licensee under this Agreement, inducting without limiiatron, the Canmunicetions Ad of 1934, as amended from time to lime, FCC Rules and Regulations, and the rules, regulations and written policies and decisions of the FAA. Applicatlon: defined in section IV on page 1. Appticadon Fee: defsled in section IV on page 1. Approved Equipment: the communications system, inducting antennas, red's equipment, cabling and conduits, shelter and/or cabinets and other personal property owned or operated by Licensee at the Licensed Space, as defined in Exhibit A or B to this Agreement. Business Day: a day other than a Saturday, Sunday or legal holiday for commerdal banks under the laws of the United States or the Commonweahh of Massachusetts. Claims: demands, claims, suits, ad'ans, proceedings or investigations brought against a person by an unrelated or unaffiliated Person, Commencement Date: defined in section IV on page 1. Common Expenses: defined in section 7. Connection Fee: defined in section IV on page 1. Conatrvctton DnwMgs: defined in section 3. Damages: debts, liabilities, obligations, losses, damages, exduding consequential or punitive damages, costs and expenses, interest (nduding, without limitation, prejudgment interest), penalties, reasonable legal fees, court costs, disbursements and costs of investigations, defidendes, levies, duties and imposts. Easement: defined in section 2. Effective Date: defined in the introductory paragraph. FAA: the United Stales Federal Aviation Administration or any succeasw federal agency established for the same or similar purpose. FCC: the Untied States Federal Communications Commission or any successor federal agency established for the same or similar purpose. FCC Rules and Regulatlorra: All oT the rules, regulations, public guidance, written polides and dedsions governing telecommunications generally and wireless telecommunications specifically as promulgated and administered by the FCC, which on the Etfedrve Date indudes, but is not limited to, those administered by We Wireless Telecommunications Bureau of the FCC and more specificely referenced as the Code of Federal Regulations, title 47, parts 0 through 101, as amended. Ground Lease: defined in section 20. Ground Space: The portion of the Tower Fadl"dy licensed for use by Licensee to boats a portion of the Approved Equipment thereon, in the square footage amount depicted on xhi ' B of this Agreement. In no event shall the Ground Space include the air space w rights share the Approved Equipment located in the Ground Space. ECMg41028 Rev. 02.24.09 LICENSOR SITE NAME /NUMBER: NOYACK NY I ea143 LICENSEE SITE plAtaHt4UMBER: TBD I TBD Hazardous Substances: Any hazardous material or substance which is or becomes defined as a hazardous substance, beecomes regulated by any federal tffiertorglocel governmental uthoritynandsany oil, peholeubm products andbtheir by-produlcts r Holdover Fee: defined in subsection ti(c). Indemnified Party: any person entitled to Indemnification under section 15 hereof. Initlal Term: defined in subsection 8(a). Interference: defined in subsection 11(a)(i). Labeling Fea: defined in section 9. Licensed Frequences: defined in subsection 11(a)(ii). Ucansed Spsre: Location of the Approved Equipment on the lower and at the Ground Space as more spe~celty described in Exhibits A and B attached hereto. Licensed User: defined in subsection 11(a)(iii). Licensee: defined in the introductory paragraph. Lkenaor: defined in the introductory paragraph. Montllly License Fae: defined in subsection 5(a). MPE: defined in section 25. Notlr:e Address: defined in section 18. NTP (Notice to Proceed): Wdlten ratice from Licensor to Licensee adrnowledging that all required documentation for the construction and installation of the Approved Equipment has been received and approved by Licensor and Licensee is authorized to commerR:e its installation oT the Approved Equipment at the Licensed Space, as more particularly set forth in serdion 10(a) of this Agreement. Party(tes): Licensor or licensee. Pennilbad Frequencies: defined in section Ill on Da9e 1 and referenced in Other Provisions °A". Priority User: defined in subsection 11(a)(w). Relocation Application Fee: defined in section IV on page 1. Remittance Address: defined in section II of page T. Ranswal Term(s): defined in subsection fi(b). RF Emissions: defined in sedan 25. Site Inspectlon Fee: defined in section IV on page 1. SSI3: defined in subsection 10(b). SSI3 Fee: defined in subsecton 10(b). Sbucturol Analysis Fes: defined in subsection 10(b). Subsequent User: defined in subsection 11 (a)(v). Term: Initial Term and each Renewal Term which is effected pursuant to section 6 of this Agreement. Tower: A communications or broadcast tower owned and operated by Licensor and located at the Tower Facility. Tower Facility: Certain real property owned, leased, subleased, licensed or managed by Licensor shown on page 1 of this Agreement, on which a Tourer ovmed, leased, licensed or managed by Licensor is located. Unlicensed Frequencies: defined in subsection 11(a)(vi). Unlicensed User: defined in subsection 11(a)(vii). Utlllty Fee: defined in section IV on page 1. ECbiM41028 Rev. 0224.09 LICENSOR SITE NAME /NUMBER: NOYACK, NY 188143 LICENSEE SITE NAMFJNUMBER: TBD I TBD Worfc: all work relating to Me constnlction, installation, relocation and reconfiguration of Licensee's Approved Equipment on the Tower Facility, irlGuding without limitation, canslrudion management, consttuLNan of an equipment pad, installation or modfication of lines, antennas, shakers and equipment cabinets. ECM#41028 Rev. 0224.09 LICENSOR SITE NAME /NUMBER: NOYACK, NY 188143 LICENSEE SITE NAMEMUMBER TBD / TBD Appendix 11 Insurance A. LICENSOR shall maintain in full force during the Term of this Agreement the following insurance: 1. Worker's Compensation Insurance with statutory limits in accordance with all applicable state, federal and maritime laws, and Employers' Liability Insurance with minimum limits of 5500,000.00 per accidenUOCCUrrence, or in accordance with all applicable state, federal and maritime laws. 2. Commercial General Liability Insurance (Bodily Injury and Tower Facility Damage), the limits of liability of which shall not be less than $1,000,000.00 per occurrence. 3. An umbrella policy of not less than Five Million Dollars ($5,000,000.00). ~ The above insurance shall provide that LICENSEE will receive not less than 30 days written notice prior to any cancellation of, or material change in coverage. The insurance specified in this Item A shall contain a waiver of subrogation against LICENSEE and shall name LICENSEE as an additional insured, and shall be primary over any insurance coverage in favor of LICENSEE but only with respect to and to the extent of the insured iiabil'Ifles assumed by LICENSOR under this Agreement and shall contain a standard cross-liability endorsement. B. LICENSEE shall maintain in full force during the Term of this Agreement and shall cause all contractors or sutlcontractors performing Work on any Licensed Space prior to the commencement of any such Work on behalf of Licensee to maintain the following insurance: 1. Worker's Compensation Insurance with statutory limits in accordance with all applicable state, federal and maritime laws, and Employers' Liability Insurance with minimum limits of $500,000.00 per accidenUoccurrence, or in accordance with all applicable state, federal and maritime laws. 2. Commercial General Liability Insurance (Bodily Injury and Tower Facility Damage), the limits of liability of which shall not be less than $1,000,000.00 per occurrence. 3. An umbrella policy of not less than Five Million Dollars ($5,000,000.00). The above insurance shall provide that LICENSOR will receive not less than 30 days written notice prior to any cancellation of, or material change in coverage. The insurance specified in this Item B shall contain a waiver of subrogation against LICENSOR and shall name LICENSOR as additional insured, and shall be primary over any insurance coverage in favor of LICENSOR but onry with respect to and to the extent of the insured liabilities assumed by LICENSEE under this Agreement and shall contain a standard cross-liability endorsement. C. Notwithstanding the foregoing insurance requirements, (a) the insolvency, bankruptcy, or failure of any insurance company carrying insurance for either Party, or failure of any such insurance company to pay Claims accruing, shall not be held to waive any of the provisions of this Agreement or relieve e'Ither Party from any obligations under this Agreement, and (b) Licensor reserves the right, from time to time, to increase the required liability limits described above in Items A arxUor B in accordance with then-current customary insurance requirements in the tower industry nationally. ECMY141025 Rev. 02.24.09 ,acoizo• CERTIFICATE OF LIABILITY INSURANCE pAIE IYY,aam'-" OBI29I2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTRUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certiflmte holder Is an ADDRIONAL INSURED, the polky(lea) must be arNlorsetl. N SUBROGATION IS WAIVED, aub)ed to the terms entl condhbrre of the policy, certeln policlea may require an entloreament. A statement on Ihla rartlflcate tloes not confer rlghta to the certifkate bottler in lieu or such andorsemenga). pBOWOER Phone: (831)293-0]00 Fax: (831)298-3850 ~NEncT Barbara Dammers ROV H REEVE AGENCY, INC. PXONE 631 2984700 Ax p, (631) 2983850 PO BOX 54 13400 MAIN ROAD ADORILSSY bdammere~royreeve.wm MATTITUCK NY 11952 INSURERt$I AFFORDING COVFJIAGE NAIL a INSURERq - DS Specialty Ins. Co. INSURED - TOWN OF SOUTHOLD INBURBR a US Specialty Ins. Co. CIO SOUTHOLD TOWN HALL IxsuRERC P.O. BOX 1179 INSURER 0'. SOUTHOLD NY 11971 INSURER E IN$URERF COVERAGES CERTIFICATE NUMBER: 49642 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANV REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAV OE ISSUED OR MAV PERTAIN, THE INSURANCE AFFORDED BV THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, LU AN OND N H S. LI TS SHO VE N ED BV PAID LAIM . INSR TYPE OF INSURANCE A001 'VeR Pm1cY EPF POLICY Exp L7R INSR wvo - PoLN:Y NUMBER Yryp ytyp LIMBS A OExEML ugelLnY X CPKG80420109 01101/13 01/01/14 EACH OCCURRENCE a 1,000,000 X COMMERCIAL GENERAL LIABILITY moq MSES(Ea wxcunonwl S 1,000,000 CLAIMSMADEOCCUR MED. EXP (Any one pBmon) $ 10,000 X Deductide-E50,000. PERSONALBADV INJURY $ 1,000,000 GENERAL AGGREGATE E 3,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG E 3,000,000 PRO- POLICV LOC _ EMPLOYEE BENEFRS LI f 1,000,000 AUTOMOBILE LIABIpTY COMBINED SINGLE UMIT IEe rcmmo $ ANY AUTO ALL OWNED CHEDULED BODILY INJURY (Per person) § AUTOS AUTOS BODILY INJURY (Per aviEenl) E HIRED AUTOS ON-OWNED P oAMgc,E UTOS (per eccaen0 $ _ E B UMBREW DAB OCCUR CPKG80420109 01/01113 01(01/14 EACH OCCURRENCE S 10,000,000 E8CE8B LNa CLAIMSMADE AGGREGATE E 10,000,000 DEO J( RETENTIONS 1g~ggg a WORKENB COYPEMBATIIX! WC STgN- OTN ANO EYPLOYERB' llgalLrfY TORY LIMITS ER $ ANY PROPWETpITARTNEWE%ECUTIYE YrM E.L. EACH ACCIDENT E OpFICERn1EMBER E%CWOEpi (WneaYryMNNI MIA E.L. DISEASE-EA EMPLOYEE f II yee, pasalCe,Mer DESCaIPTION Op OPERgiwNS pelow E.L. DISEASE-POLICY LIMIT § DESCRIPTION OF OPERATION81 LOCATNNIS I VEHICLES (A/bah ACORD 101, AdtllllonM Remerka SehaduM, if more span b rpulrad) Certificate holder Is Ilsted as adiitional insured with reaped to general Iiabllity as per the terms entl eonditlons of form #PKGLI0040, Blanket Addltlonal Insured, as required by wNtlen contract or agreement. Location of Tower :507 Middle Line Highway, Sag Harbor, N Y 11983.3601, Site #68143, Site Name : Noyack, NY CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE American TOWBB LLC THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 10 PresldBntial Way ACCORDANCE WRH THE POLICY PROWSIONS. Woburn, MA 01801 gUTHORl2En REPRESENTATrvE Attention: ~ ' V~'Yr/rArJ ~~~~~y+.w^fr~~ Thomas A. Dickerson ACORD 25 (2010/05) ®1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD ' ~ ~ ~ ~ ~ d RE, NIELSEN, IIUBER & COUGHLIN, L A"I"1'OF2NEY'S A'r LAW 3R NnRTIi NEW Y~()RR AVENUE E~UF'ErR~,VISOR'SDFFICE HUNTIN(iTON, NEW YORR II743 1vnnOFSOUTHOLD TELEEAON E: tg `aj r~ 425-4100 FAaslximE: (631) 425-4104 Or GovNee~ WILLIAM aI. NIELSEN August 20, 2013 VIA FIRST CLASS MAIL Supervisor Scott A. Russell and Members of the Town Board Town of Southold 53095 Main Road P.O. Box 1179 Southold, New York 11971 RE: Visual Study Crane Test for Proposed Public Utility Wireless Telecommunications Facility of New Cingular Wireless PCS, LLC Premises: Town of Southold Property South side of Traveler Street, approximately 157 feet east of Horton Lane Southold, New York SCTM#: 1000-61.00-01.00-002.002 Deaz Supervisor Russell and Members of the 'Gown Boazd: We aze the attorneys for New Cingulaz Wireless PCS, LLC ("AT&T") in connection with the captioned matter. AT&T intends to file an application seeking municipal approval for the installation of a public utility wireless telecommunications facility at the above-captioned premises. Transmitted herewith is the legal notice concerning the visual study crane test for the proposed public utility wireless telecommunications facility. Said notice shall be published in the August 29, 2013 edition of the Suffolk Times, which we understand is the Town of Southold's official newspaper for legal notices. Should you have any questions with regard to the foregoing, please do not hesitate to contact us. Very truly yours, RE, NIELSEN, HUBER & COUGHLIN, LLP By: l~ Janine B'nno /j Enclosure LEGAL NOTICE ON SEPTEMBER 11, 2013, A VISUAL STUDY WILL BE PERFORMED AT THE PREMISES LOCATED ON THE SOUTH SIDE OF TRAVELER STREET, APPROXIMATELY 157 FEET EAST OF HORTON LANE, SOUTHOLD, NEW YORK, BEGINNING AT APPROXIMATELY 8:OOAM IN CONNECTION WITH AN APPLICATION BY NEW CINGULAR WIRELESS PCS, LLC ("AT&T"), SEEKING MUNICIPAL APPROVAL FROM THE TOWN OF SOUTHOLD FOR THE INSTALLATION OF A PUBLIC UTILITY WIRELESS TELECOMMUNICATIONS FACILITY. AS PART OF THE VISUAL STUDY, A CRANE WILL BE PLACED AT THE PREMISES TO AID IN ASSESSING THE VISUAL IMPACT OF THE PROPOSED PUBLIC UTILITY WIRELESS TELECOMMUNICATIONS FACILITY. IN CASE OF INCLEMENT WEATHER ON SEPTEMBER 11, 2013, THE STUDY WILL INSTEAD BE PERFORMED ON SEPTEMBER 12, 2013, BEGINNING AT APPROXIMATELY 8:OOAM. IN CASE OF INCLEMENT WEATHER ON SEPTEMBER 12, 2013, THE STUDY WILL INSTEAD BE PERFORMED ON SEPTEMBER 17, 2013, BEGINNING AT APPROXIMATELY 8:OOAM.