2013-2692013-269
Resolution Authorizing A Portion of Unused Vacant Property to Be Leased to Wireless
Edge Towers, LLC For Construction of Cell Tower Subject To Permissive Referendum
At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County,
New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on December
9, 2013.
The meeting was called to order by Barbara Gutzler, Supervisor, and upon roll being
called, the following were present:
PRESENT: Supervisor
Councilmembers
ABSENT:
Barbara Gutzler
William H. Beale
Vincent F. Bettina
Ismay Czarniecki
Michael Kuzmicz
The following Resolution was introduced by Councilman Beale and seconded by
Councilman Bettina
WHEREAS, the Town owns a parcel of property identified as tax grid # 135689-6357-
01-114590 and commonly known as 30 Soccerfield Drive in the Town of Wappinger, hereinafter
described as the "Property"; and
WHEREAS, Wireless Edge Towers, LLC, hereinafter "Wireless Edge", has proposed to
lease approximately 6,400 square feet of the Property, hereinafter described as the "Premises",
and as described on Exhibit "B" of the proposed Lease Agreement attached hereto, made a part
hereof, marked and designated as Exhibit "1" to this Resolution; and
WHEREAS, the Premises to be leased Wireless Edge are presently vacant, unused and
unneeded by the Town for any municipal purposes; and
WHEREAS, the Town Board Members have reviewed the proposed Lease Agreement
and have determined that the terms and conditions stated within are reasonable and that it would
be in the best interests of the Town to enter into the Lease Agreement; and
WHEREAS, a metes and bounds description of the Premises will be prepared by a
licensed surveyor and reviewed and approved by the Engineer to the Town and will also be
affixed to Exhibit "B" to the Lease Agreement; and.
WHEREAS, it has been determined that the granting of a Lease Agreement to Wireless
Edge is subject to a Permissive Referendum in accordance with Article 7 of the Town Law of the
State of New York; and
WHEREAS, the Town Board has determined that the proposed action is an Unlisted
Action in accordance with the SEQRA Regulations adopted pursuant to Article 8 of the
Environmental Conservation Law found at 6 NYCRR Part 617 and pursuant to Chapter 117 of
the Town of Wappinger Code (Environmental Quality Review); and
WHEREAS, the construction of a wireless telecommunications facility is subject to site
plan review and special permit review by the Town of Wappinger Planning Board pursuant to
§240-81 of the Town Code; and
WHEREAS, the Town Board has determined that it will not conduct a coordinated
review of this project under the SEQRA regulations and that the Town of Wappinger Planning
Board shall conduct its own separate SEQRA review for the applications before that Board; and
WHEREAS, the Town Board has determined that there are no significant adverse
environmental impacts associated with the proposed lease and adopted a Negative Declaration of
Significance concluding the SEQRA review process.
NOW, THEREFORE, BE IT RESOLVED, as follows:
1. The recitations above set forth are incorporated in this Resolution as if fully set
forth and adopted herein.
2. The Town Board hereby agrees to lease a portion of the Property containing
approximately 6,400 square feet, as generally described in Exhibit "B" of the
Lease Agreement, it being specifically understood that a metes and bounds
description will be prepared by a licensed surveyor to be reviewed and approved
by the Engineer to the Town and the Attorney to the Town and shall be affixed to
Exhibit "B" of the Lease Agreement once received and approved.
3. The Town Board hereby determines that the terms and conditions contained in
the proposed Lease Agreement attached hereto as Exhibit "1 ", are fair and
reasonable and that it is in the best interests of the Town to enter into the Lease
Agreement.
4. The Town Board hereby agrees to lease the Premises generally described in
Exhibit "B" of the Lease Agreement attached hereto as Exhibit "1" to Wireless
Edge for an initial term often years, with an option to extend the Lease for three
successive renewal terms often years each, with each renewal term consisting of
the same terms and conditions as set forth in the initial term, except for yearly
rental increases; the initial annual rent for the first year of the Lease shall be
$24,000.00 and thereafter said annual rent shall be increased at the rate of 3% per
annum for the first term and for the first renewal term of the Lease, and, thereafter
the annual rent for each year of the third and fourth renewal terms shall be
increased by the Consumer Price Index (CPI) as set forth in the Lease Agreement.
5. Supervisor Barbara A. Gutzler is hereby authorized to execute the Lease
Agreement and other related Lease documents on behalf of the Town in
substantially the same format as attached hereto as Exhibit "1 ". The Supervisor
and the Attorney to the Town are authorized to negotiate modifications to the
proposed Lease Agreement provided such modifications do not change the
substantive provisions of the Lease Agreement or any of the monetary lease
payments accruing to the Town.
6. The Town Board has reviewed the Proposed Action pursuant to Article 8 of the
Environmental Conservation Law, Part 617 NYCRR (SEQRA) and pursuant to
Local Law 6 of 1992, and hereby determines that there are no adverse
environmental impacts associated with the adoption of this Resolution, and
hereby issues a Negative Declaration of Significance.
7. The Town Clerk is hereby directed to file the Negative Declaration of
Significance as provided by law.
This Resolution is adopted subject to Permissive Referendum, and the Town
Clerk shall give Notice of Adoption of Resolution by publishing a copy of this
Resolution together with the Notice of Adoption thereof in the official
newspapers of the Town, the Southern Dutchess News and the Poughkeepsie
Journal, and, in addition, the Town Clerk shall post or cause to be posted on the
bulletin board maintained by the Town Clerk at Town Hall a copy of such
Resolution and the Notice of Adoption thereof, with the publication and posting
to be done within ten days of the date hereof.
The foregoing was put to a vote which resulted as follows:
BARBARA GUTZLER, SUPERVISOR Voting: AYE
WILLIAM H. BEALE, COUNCILMAN Voting: AYE
VINCENT F. BETTINA, COUNCILMAN Voting: AYE
ISMAY CZARNIECKI, COUNCILWOMAN Voting: AYE
MICHAEL KUZMICZ, COUNCILMAN Voting: AYE
Dated: Wappingers Falls, New York
12/9/2013
The Resolution is hereby duly de ared adopted.
MICH L J. LEO / O CL RK
WIRELESS TELECOMMUNICATIONS FACILITY LEASE AGREEMENT
This Wireless Telecommunications Facility Lease Agreement ("Lease") is entered into as of the
day of 20_ (the "Effective Date") by and between the Town of
Wappinger ("Landlord") and Wireless EDGE Towers, LLC ("Tenant").
WITNESSETH:
WHEREAS, Landlord is the owner of certain real property more particularly described on
Exhibit "A" attached hereto (the "Property"); and
WHEREAS, Landlord and Tenant are entering into this Lease for a portion of the Property
measuring approximately 6,400 square feet as more particularly described on Exhibit "B"
attached hereto (the "Premises") to permit Tenant to develop the Premises as a wireless
telecommunications facility; and
WHEREAS, in order to develop the Premises, Tenant shall construct a tower, as generally
depicted on Exhibit "C" attached hereto (collectively, the "Structure"), as well as equipment
sheds and related facilities and improvements to accommodate multiple wireless carriers, as
well as Landlord's public service or other governmental antennas; and
WHEREAS, Tenant intends to market portions of the Structure and Premises to wireless
carriers, and to enter into appropriate agreements with such carriers to use the Structure and
Premises; and
WHEREAS, during the period of the carriers' use of the Structure and the Premises, Tenant
shall manage the Premises by performing the services described on Exhibit "D" attached hereto
(the "Antenna Site Management Responsibilities");
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Landlord and Tenant hereby agree as follows:
1) Premises. Landlord hereby leases to Tenant the Premises and Tenant hereby leases from
Landlord the Premises upon the terms and conditions contained in this Lease.
2) Term.
(a) The Initial Term of the Lease shall be ten (10) years (the "Initial Term"), commencing
upon the date ("Commencement Date") that is the earlier of (i) the date that Tenant commences
the actual construction on the Premises, or (ii) the date that is sixty (60) days after Tenant has
received all Governmental Approvals (as hereafter defined) including the issuance of a building
permit by Landlord. Upon commencing such construction, Tenant shall notify Landlord of the
Commencement Date. Tenant shall have the right to extend this Lease for three (3) renewal
terms of ten (10) years each (each, a "Renewal Term"; the Initial Term and any Renewal Term
WEC-NY-22
Town of Wappinger
are hereinafter referred to collectively as the "Lease Term"). Each Renewal Term shall be on
the same terms and conditions as set forth herein.
(b) If Tenant elects not to exercise Tenant's right to renew the Term or any Renewal Term,
as the case may be, Tenant shall notify Landlord, in writing, of Tenant's intention not to renew
this Lease, at least sixty (60) days prior to the expiration of the then current term. Unless Tenant
notifies Landlord, in writing, of its intention not to exercise a Renewal Term, such Renewal
Term shall be deemed automatically exercised and this Lease shall continue pursuant to the
terms hereof.
(c) If Tenant remains in possession of the Premises at the expiration of the Lease Term
without a written agreement, such tenancy shall be deemed amonth-to-month tenancy under the
same terms and conditions of this Lease.
3) Rent.
(a) Upon the Commencement Date, Tenant shall pay Landlord, as rent, the amount of
Twenty-four Thousand Dollars ($24,000.00) per year (the "Annual Rent") payable in equal
monthly installments of Two Thousand Dollars ($2,000.00) per month in advance to
Landlord, at the Landlord's business address as provided by Landlord to Tenant. Annual Rent
for each year of the Initial Term and the first Renewal Term shall be increased by the amount of
three percent (3%) over the Annual Rent in effect at the end of the previous year. Starting on
the first year of the second Renewal term and thereafter, the Annual Rent for each year shall be
increased by the Consumer Price Index as such term is hereafter defined, over the Annual Rent
in effect at the end of the previous year. The "Consumer Price Index" will mean the Local
Metropolitan Area Consumer Price Index published by the Bureau of Labor Statistics of the United
States Department of Labor for Urban Wage Earners and Clerical Workers (CPI-W). In the event the
Consumer Price Index is converted to a different standard reference base or otherwise revised, the
determination of Annual Rent will be made with the use of such conversion factor, formula or table for
converting the Consumer Price Index as may be published by the Bureau of Labor Statistics, or if the
Bureau should fail to publish same, then with the use of such conversion factor, formula or table for
converting the Consumer Price Index as may be published by Prentice Hall, Inc., or any other nationally
recognized publisher of similar statistical information. If the Consumer Price Index ceases to be
published and there is no successor thereto, such other index as Landlord and Tenant may agree upon
will be substituted for the Consumer Price Index. If they are unable to agree, then such matter will be
submitted to arbitration.
(b) In addition, Tenant shall pay to Landlord a portion of the amounts collected from
wireless carriers using portions of the Structure and the Premises as specified in Section 6(c)
below ("Co-Location Rent"; Annual Rent and Co-Location Rent are sometime hereinafter
referred to, collectively, as "Rent").
(c) Landlord acknowledges and agrees that the total compensation or remuneration which
Landlord shall be entitled to charge and collect from Tenant, in any manner related to Tenant's
use and operation of the Premises, shall be solely as set forth in Sections 3(a) and 3(b) above. In
this regard, Landlord agrees that it shall not levy or impose any additional fees, other than standard and
customary permit fees, real estate taxes (specifically State, County and Town and School taxes and
assessments) upon Tenant other than as set forth in this Agreement.
WEC-NY-22
Town of Wappinger
4) Permitted Use; Governmental Approvals; Construction.
(a) The Premises may be used by Tenant for the construction, maintenance and operation of
the Structure for the transmission and reception of communications signals, including wireless
communication purposes and uses incidental thereto. Tenant shall obtain all licenses,
certificates, permits, authorizations or approvals from all applicable government and/or
regulatory entities including, but not limited to all necessary zoning and site plan approvals,
building permits and certificates of occupancy (collectively, the "Governmental Approvals").
Tenant agrees to submit required applications for governmental approvals to the Town of
Wappinger Planning Board within one year from the date of a fully executed copy of this Lease
Agreement. In the event Tenant does not submit required applications for governmental
approvals to the Town of Wappinger Planning Board within one year as stated herein, either
party may cancel this Lease Agreement upon thirty days written notice to the other party. The
Town Board agrees to grant a reasonable extension of time for cause demonstrated by Tenant.
(b) Landlord hereby authorizes Tenant to prepare, execute, and file all required applications
for the Governmental Approvals, subject to the review and approval of Landlord, not to be
unreasonably withheld, conditioned or delayed. Tenant shall be responsible for vigorously and
diligently defending on its behalf (but not representing Landlord) all Governmental Approvals
granted for the Structure and Premises, including any approvals made by a board or
commission of the Landlord, which are challenged by a third party in any administrative agency
or court of law. Tenant shall submit a building permit application to the Town of Wappinger
within sixty (60) days of obtaining final site plan approval (the "Permit Filing Date"), including
expiration of all applicable appeal periods. Upon request of Tenant, Landlord may extend the
Permit Filing Date if Tenant is delayed through no fault of Tenant, and Landlord shall not
unreasonably or arbitrarily withhold such extension.
(c) Tenant shall have the right, at Tenant's expense, to conduct engineering tests,
environmental tests, and all other feasibility studies necessary or desirable for Tenant's use of
the Premises. Such testing by Tenant shall not unreasonably interfere with the operations of the
Landlord at the Property.
(d) Upon obtaining all Governmental Approvals, Tenant shall have the right, at Tenant's
expense, to construct and maintain the Structure on the Premises. In this regard, Tenant shall
have the right to install, at Tenant's sole cost and expense, utilities and conduits necessary to
service the Structure, to improve the present utilities on the Property, and/or install an
emergency power generator on the Premises. All work by Tenant shall be performed in
compliance with applicable laws and ordinances and shall be done in a fashion so as to
minimize interference with the use of the area surrounding the Premises by Landlord and, upon
completion of such construction, any area disturbed by the work, shall be restored to the
condition it was in prior to the commencement of said work.
(e) In making and executing this Lease, Tenant represents that it has not relied upon, nor been
induced by, any statements or representations of any person in respect to the zoning of, utility
service for or the physical condition of the subject Property, or of any other matter affecting, or
relating to the subject Property of this transaction. Tenant has, on the contrary, relied solely on
such investigations, examinations and inspections as Tenant has chosen to make or have made.
WEC-NY-22
Town of Wappinger
Tenant acknowledges that Landlord will afford Tenant the opportunity for full and complete
investigations, examinations and inspections of the subject Property.
(f) Tenant, its representatives, agents, and employees are granted the limited privilege to
enter upon the subject Property for the purpose of performing engineering, environmental and
land use (zoning and site plan) planning studies, test borings and a survey of subject Property.
The Tenant agrees that any such entry shall be at its own risk, and agrees to indemnify and save
Landlord harmless from all costs, loss or damage on account of injury to person and property
arising out of said entry upon the Property, together with any and all attorneys' fees and
expenses incurred by the Landlord on account of any claims thereof, except for those resulting
from Landlord's gross negligence or wrongful act(s).
(g) If Tenant or his agents, disturb or alter the Property as a result of its entry as authorized
above, Tenant agrees, at its own cost and expense, and to the extent reasonably practicable, to
restore the Property to the condition that existed prior to the disturbance, as soon as reasonably
possible. This Clause shall survive any termination of this Contract.
(h) Tenant or any of its contractors or subcontractors shall name Landlord as additionally
insured or certificate holder on general liability policies in accordance with paragraph 10.
Insurance policies shall be delivered to Landlord prior to entry onto the property.
5) Access; Utilities and Taxes.
(a) Landlord hereby grants Tenant access to the Premises over, under and across the
Property ("Access") twenty-four (24) hours per day, seven (7) days per week, for the purpose of
ingress, egress, installation, maintenance and operation of the Structure and any associated
utilities. The Access right granted herein shall automatically extend to all of Tenant's agents,
representatives, contractors, invitees and vendors, as well as to all subtenants and their agents,
representatives, contractors, invitees and vendors.
(b) Landlord's access to the Premises shall be restricted as follows: (i) unless an emergency
condition exists, all access shall be on reasonable notice to Tenant; (ii) Landlord shall take
commercially reasonable precautions to ensure that no damage occurs to the Structure or other
improvements or any of the property of Tenant or any subtenant during or as a result of such
access; and (iii) Landlord shall promptly repair, to Tenant's reasonable satisfaction, any damage
caused as a result of any such access.
(c) Tenant shall have the right to obtain, for itself and on behalf of its subtenants, sufficient
utility services to the Premises, including, without limitation, electric service and telephone
service. Subject to Landlord's reasonable approval of the location and at Tenant's sole cost,
Tenant shall have the right to install conduits, utility lines, related equipment and other items to
connect the Premises to such utility services. At the time of such installation by Tenant, Tenant
shall provide conduits and sufficient electrical capacity to allow Landlord to operate Landlord's
public service or other governmental antennae systems as hereinafter defined at the Premises.
Such installation by Tenant shall not unreasonably interfere with the operations of the Landlord
at the Property. Tenant shall pay any charges to install utilities to the Premises, including
emergency power generators, and shall pay all utilities charges for utilities consumed by Tenant
at the Premises. Landlord agrees to reasonably cooperate with Tenant to obtain any required
local public utility easements, if necessary.
WEC-NY-22
Town of Wappinger
(d) Tenant shall pay Landlord as Additional Rent, or directly to the appropriate taxing
authority, any real estate taxes or assessments with respect to the Property which are directly
attributable to the improvements placed on the Premises by Tenant's subtenants as provided in
this Agreement. Such taxes may only be imposed upon Tenant's subtenants in conjunction with
similar tax treatment of other properties containing improvements similar to other wireless
telecommunications facilities in the Town. Landlord shall not assess the Structure, Landlord's
or other governmental and public safety improvements on the Structure, except for
improvements to the Structure in connection with commercial antenna installations and related
ground improvements.
(e) As a condition precedent to Tenant's obligation to make any such tax payment,
Landlord agrees to promptly furnish proof of such taxes and assessments to Tenant, including
true copies of the real estate tax bills (or other documentation) provided to Landlord. Tenant
and Tenant's subtenants shall have the right to appeal or otherwise challenge any such taxes in
its own name.
6) Assignment and Subletting.
(a) Tenant may not assign this Lease without obtaining the prior consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the
foregoing, Tenant shall have the right to assign this Lease, without the consent of Landlord: (i)
to the purchaser or transferee of the Structure, provided that (x) the proposed assignment is for
a legitimate business purpose, (y) the proposed purchaser shall have been engaged in business
in the wireless industry for at least five years and (z) the proposed purchaser shall have assets or
net worth of at least Two Million Dollars ($2,000,000) at the time of the proposed transfer; or
(ii) to a parent, affiliate, or subsidiary of Tenant, or an entity controlling, controlled by or under
common control with Tenant. Prior to assigning this Lease, Tenant shall give notice to Landlord of
Tenant's intention to assign at least thirty (30) days prior to such assignment together with written proof
of compliance with the standards set forth above. Tenant's notice to Landlord shall specify the name and
mailing address of the assignee. Upon proof of compliance with the above, and upon the effective date
of the assignment, Tenant shall be relieved of all obligations of this Lease. The assignment of this Lease
shall not be effective if compliance with the above standards have not been proven to the satisfaction of
Landlord."
(b) Tenant shall have the further right, without the consent of Landlord, to sublet the
Structure and the Premises, in whole or in part, to wireless carriers ("co-locators") in
accordance with the permitted uses of the Premises set forth in Section 4 above. Tenant shall
give notice to Landlord each time Tenant enters into any such sublease. Tenant's notice to
Landlord shall specify the name and mailing address of the subtenant. Landlord and Tenant
shall share the rental income from subleases as described in subsection (c) below. Tenant shall
be responsible for all costs arising from marketing activities, acquisition of subtenants and the
preparation and negotiation of legal sublease documentation.
(c) The Annual Rent shall include the installation of equipment for, and sublease with, one
co-locator (the "Anchor Co-locator"), to be designated by Tenant. In addition to the Annual
Rent, Tenant shall pay Landlord an amount (the "Co-location Share") calculated as follows: (i)
an amount equal to the greater of Six Hundred Dollars ($600) per carrier per month from the
second through third subleases by BBE (Broadband Equivalent) Carriers of the Premises or
Thirty percent (30%) of all amounts of Rental Income received from such second through third
WEC-NY-22
Town of Wappinger
subleases, (ii) an amount equal to the greater of Eight Hundred Dollars ($800) per carrier per
month from the forth and subsequent subleases by BBE (Broadband Equivalent) Carriers of the
Premises or Forty percent (40%) of all amounts of Rental Income received from such forth and
subsequent subleases and (iii) Forty percent (40%) of all amounts of Rental Income received
from additional subleases by NBE (Narrowband Equivalent) Carriers (governmental, paging,
etc. occupying the top portion of the monopole) of the Premises. Tenant shall not be obligated
to pay a Co-Location Rent of the Rental Income from the Anchor Co-locator. If the Anchor Co-
locator sublease is terminated or expires, Tenant shall designate by notice to Landlord the co-
locator sublease that shall replace the Anchor Co-locator sublease. The term "Rental Income"
as used in this Lease shall mean all amounts paid to Tenant by subtenants (co-locators), except
that Rental Income shall expressly exclude (i) any amounts paid to Tenant to reimburse Tenant
for costs incurred by Tenant caused by, at the request of or on behalf of, the subtenant,
including, but not limited to, utilities, site improvements, conduits, taxes, assessments, security
deposits, penalties and fines (including interest thereon) for violations of law by the subtenant
and legal fees; (ii) any amounts paid to Tenant to reimburse Tenant for costs incurred by Tenant
in entering into this Lease, obtaining the Governmental Approvals, or constructing the Structure
and Premises; and (iii) any initial fee to be charged by Tenant to each prospective subtenant to
reimburse Tenant for costs, expenses and fees related to the submissions, installation design and
site studies for such subtenant. In the event that any amount of Rental Income is received by
Tenant in a month other than the month for which such Rental Income is due, Tenant will make
appropriate adjustments in order to properly allocate such amounts to the proper month.
Annual Rent and Co-Location Rent are sometimes, collectively, referred to herein as "Rent"
(d) Landlord may not assign its rights or obligations under this Lease without the prior
written consent of Tenant. Notwithstanding the foregoing, on written notice to Tenant,
Landlord shall be entitled without consent from Tenant to: (i) assign it's right to receive Rent
subject to 6(f) below.
(e) If at any time after the Effective Date, Landlord receives a bona fide written offer from
a third party seeking an assignment of (or otherwise seeking to acquire) the rental stream
associated with this Lease (a "Purchase Offer"), Landlord shall immediately furnish Tenant
with a copy of the Purchase Offer, together with a representation that the Purchaser Offer is
valid, genuine and true in all respects (a "Purchase Offer Notice"). Tenant shall have the right
within thirty (30) days after it receives the Purchase Offer Notice to agree in writing to match
the terms of the Purchase Offer. If Tenant chooses not to exercise this right of first refusal or
fails to provide written notice to Landlord within the thirty (30) day period, Landlord may
assign the rental stream pursuant to the Purchase Offer subject to the terms of this Lease
(including, without limitation, the terms of this Subparagraph 6(e), to the person or entity that
made the Purchase Offer provided that (i) the assignment is on the same terms contained in the
Purchase Offer and (ii) the assignment occurs within ninety (90) days of Tenant's receipt of a
copy of the Purchase Offer. If such third party modifies the Purchase Offer or the assignment
does not occur within such ninety (90) day period, Landlord shall re-offer to Tenant, pursuant
to the procedure set forth in this Subparagraph 6(e), the assignment on the terms set forth in the
Purchase Offer, as amended and the foregoing time periods and terms/conditions shall re-apply
to the amended Purchase Offer. The right of first refusal hereunder shall (i) survive any
transfer of all or any part of the Property or assignment of all or any part of the Lease; (ii) bind
WEC-NY-22
Town of Wappinger
and inure to the benefit of, Landlord and Tenant and their respective heirs, successors and
assigns; (iii) run with the land; and (iv) terminate upon the expiration or earlier termination of
this Lease without the necessity of any further written co~rmation of said termination of this
right of first refusal.
7) Public Service or Other Governmental Antennas.
(a) Tenant shall provide structural capacity and reserved space on the Structure for
Landlord's public service or other governmental antennas (hereinafter Landlord's Antennas).
For the purposes of this Agreement, Landlord's public service or other governmental antennas
shall be deemed to include, but not limited to, antennas for the New Hackensack Fire District,
the Hughsonville Fire District, the Chelsea Fire District, the Wappinger Ambulance District and
any Police Department or agency designated by the Town Board and any other antenna needed
to facilitate governmental functions of the Town of Wappinger.
(b) At no cost to Landlord, Tenant shall install Landlord's antenna(s) and related equipment
on the Structure and Premises, as applicable, promptly following the completion of the
construction of the Structure. Tenant shall provide such space on the Structure to Landlord free
of rent. Tenant shall be solely responsible for all costs to maintain Landlord's antennas on the
Structure. All other related apparatus shall be maintained by the Landlord or the entity owning
the equipment.
8) Maintenance, Repair and Removal.
(a) Tenant shall install and operate the Structure in compliance with all applicable laws and
ordinances. Tenant shall, at Tenant's expense, keep and maintain in good condition and repair
the Premises and the Structure, and shall maintain the Structure in compliance with all statutes,
codes, rules and regulations of any governmental agency having jurisdiction hereof. Upon
termination of this Lease, Landlord shall have the option of requiring Tenant to turn over to the
Town the tower and any related structures in operating condition, reasonable wear and tear
excepted, or to require the Structure and any related improvements to be removed .Whether or
not Landlord requires the removal of the Structure and related improvements, the Premises and
any improvements not removed shall be turned over to Landlord in good, usable condition, reasonable
wear and tear and casualty excepted, and any remaining improvements shall thereupon become the
property of Landlord. Notwithstanding the foregoing, in the event that Landlord requires Tenant
to remove the Structure as contemplated herein, Landlord acknowledges and agrees that Tenant
shall have no obligation to remove the foundation of the Structure beyond ten (10) feet below
grade.
(b) In the event that Landlord desires to retain the Structure at the end of the Term for
purposes of maintaining its public services antennas and, provided, further, that no
wireless carriers will have leases for, or other right to remain on the Structure that will
survive the end of the Term, Landlord shall be entitled to purchase the Structure from
Tenant on ninety (90) days advance written notice, for one dollar ($1.00). In the event that
Landlord desires to retain the Structure at the end of the Term for purposes of
maintaining its public services antennas, but at least one (1) wireless carrier has a lease or
other right to remain on the Structure which extends beyond the end of the Term,
Landlord and Tenant agree to negotiate in good faith regarding an extension of Lease.
WEC-NY-22
Town of Wappinger
9) Default. Any of the following occurrences, conditions or acts shall be deemed a default
under this Lease (a "Default"): (a) if Tenant fails to pay monetary amounts due under this Lease
within ten (10) business days of its receipt of written notice that such payments are overdue; or
(b) if either party fails to observe or perform any non-monetary obligations under this Lease
and does not cure such failure within thirty (30) days from its receipt of written notice of
breach; provided, however, that if such breach cannot be cured within said thirty (30) day
period, the breaching party shall not be in Default if, within thirty (30) days, it commences
efforts, and thereafter proceeds diligently, to cure such breach.
10) Termination.
(a) This Lease may be terminated by Landlord without any penalty or further liability, on
thirty (30j days prior notice to Tenant at any time in the event that Tenant: (i) is in Default after
notice and the expiration of any applicable cure period; or (ii) has failed to enter into any
subleases of the Premises or the Structure within one (1) year following the issuance of all
Governmental Approvals; or (iii) has failed to submit an application to the Town of Wappinger
Planning Board or Building Department, as applicable by code. Notwithstanding the above
section 10(a)(iii), if Tenant is unable to submit the application within the allotted time limit,
Tenant may request that Landlord extend the time limit. As long as Tenant is diligently
pursuing the project and has cause for requiring the additional time, Landlord's approval shall
not be unreasonably withheld, conditioned or delayed.In such event, Landlord, in its sole
discretion, may require upon written notice to Tenant, that Tenant remove the Structure and all
other installations made by Tenant at the Premises, in accordance with Section 7 hereof.
(b) This Lease may be terminated by Tenant, without any penalty or further liability, on
thirty (30) days prior notice to Landlord as follows: (i) if Tenant is unable to obtain in a timely
manner any Governmental Approval necessary for the installation and/or operation of the
Structure at the Premises, or any Governmental Approval is canceled, expires, lapses or is
otherwise withdrawn or terminated; or (ii) if Tenant determines the Premises are not
appropriate for its operations for economic or technological reasons; or (iii) if Tenant is unable
to occupy and utilize the Premises due to an action of the Federal Communications Commission
including, without limitation, a take back of channels or change in frequencies; or (iv) if
Hazardous Substances (as defined in Section 16) are or become present on the Property or
Premises in violation of Environmental Laws (as defined in Section 16).
11) Insurance and Subro ag tion.
(a) Tenant shall maintain the following insurance during the Lease Term:
(i) general liability insurance for claims for bodily injury or death and property damage
with combined single limits of not less than $1,000,000 per occurrence with a general
aggregate limit of $2,000,000.
(ii) workers' compensation insurance insuring against and satisfying Tenant's
obligations and liabilities under the workers' compensation law of the state in which the
Premises are located; and
(iii) if Tenant operates owned, hired or non-owned vehicles on or about the Property,
comprehensive automobile liability insurance with a limit of not less than $1,000,000
WEC-NY-22
Town of Wappinger
combined bodily injury and property damage.
(iv) an umbrella policy of $2,000,000.
Each such policy (except workers' compensation) shall list Landlord as an additional insured,
and shall provide that it will not be terminated during the Lease Term or modified to affect the
coverage required except after thirty (30) days prior notice thereof to Landlord.
(b) Tenant shall have the right to fulfill its insurance obligations under this paragraph by
obtaining appropriate endorsements to any master policy of liability insurance that Tenant or its
affiliates may maintain.
(c) Tenant shall, prior to commencing construction of the Structure and annually thereafter,
furnish to Landlord certificates of insurance listing Landlord either as additional named insured
or additional insured on a primary basis and the Landlord's insurance is non-contributing to the
extent permitted by applicable insurance regulations.
(d) At all times during the Lease Term, Landlord will carry and maintain commercial
general liability insurance on the Property, including any common area, in commercially
reasonable amounts.
(e) Landlord and Tenant each waive any and all rights to recover against the other, or
against the officers, directors, shareholders, partners, joint ventures, employees, agents,
customers, invitees or business visitors of such other party, for any loss or damage to such
waiving party arising from any cause covered or required to be covered by any property
insurance required to be carried pursuant to this paragraph or any other property insurance
actually carried by such party, provided that the party against whom relief is sought, has
complied with the terms of this Section 10. Landlord and Tenant will cause their respective
insurers to issue waiver of subrogation rights endorsements to all property insurance policies
carried in connection with the Structure or the Premises or the contents of either.
12) Hold Harmless. Tenant agrees to indemnify and hold Landlord harmless from any and all
claims arising directly from the installation, use, maintenance, repair or removal of the
Structure at the Premises, except for claims arising from the negligence or intentional acts of
Landlord, its employees, agents or independent contractors. Landlord agrees to indemnify and
hold Tenant harmless from any and all claims arising out of the negligence or intentional acts of
Landlord, its employees, agents, or independent contractors in, on or about the Property, except
for claims arising from the negligence or intentional acts of Tenant, its employees, agents or
independent contractors.
13) Notices. All notices, requests, demands and other communications shall be in writing and
shall be deemed given, (i) if personally delivered or mailed, upon delivery, or if (ii) by certified
mail, return receipt requested, five (5) days after mailing, or if (iii) sent by overnight carrier,
upon receipt, to the addresses for Landlord and Tenant stated below:
if to Landlord:
Town of Wappinger
20 Middlebush Road
Wappingers Falls, New York 12590
WEC-NY-22
Town of Wappinger
Attention: Supervisor
with a copy to: Town of Wappinger
20 Middlebush Road
Wappingers Falls, New York 12590
Attention: Town Clerk
with a copy to: Stenger Roberts Davis & Diamond, LLP
1136 Route 9
Wappinger Falls, New York, 12590
Attention: Albert P Roberts, Esq.
(or successor law firm as directed by Landlord)
if to Tenant: Wireless EDGE Towers, LLC
270 North Avenue, Suite 809
New Rochelle, New York 10801
Attention: Tower Development
with a copy to: Cuddy & Feder LLP
445 Hamilton Ave., 14th Floor
White Plains, New York 10601
Attention: Robert J. Levine, Esq.
14) Quiet Enjoyment, Title and Authority. Landlord represents, to the best of its knowledge, to
Tenant that (i) Landlord has "full right, power and authority to execute this Lease and Landlord
has taken all necessary action to approve this Lease and has authorized the signatories of this
Lease to sign same; (ii) the Property is free and clear of any unrecorded covenants, restrictions,
liens or mortgages which would interfere with Tenant's rights to or use of the Premises; (iii) no
consents are required from any mortgagee, licensee or any other occupant of the Property with
respect to Tenant's use of the Premises; (v) the execution and performance of this Lease will
not violate any local laws, ordinances, covenants or the provisions of any mortgage, lease or
other agreement binding on Landlord. Landlord shall be responsible for any costs due to the
failure of the Property, exclusive of Leased Premises, to comply with all applicable local, state
and federal laws, ordinances, codes, and regulations. Tenant shall not be responsible for any
costs due to the failure of the Property, exclusive of Leased Premises, to comply with all
applicable local, state and federal laws, ordinances, codes, and regulations, unless such failure
to comply was caused by Tenant or any of its employees or agents or sub-Tenants. Landlord
shall not be responsible for any costs due to failure of the Leased Premises to comply with
applicable local, state and federal laws, ordinances, codes and regulations caused by Tenant, its
employees, agents or sub-Tenants. Landlord covenants that at all times during the term of this
Lease, Tenant's quiet enjoyment of the Premises or any part thereof shall not be disturbed as
long as Tenant is not in Default after notice and the expiration of any applicable cure period.
15) Casualty or Condemnation. If the Property or the Structure are destroyed or damaged so as
WEC-NY-22
Town of Wappinger
in Tenant's reasonable judgment to substantially and adversely affect the effective use of the
Structure, then Tenant may elect to terminate this Lease and in such event, all rights and
obligations of the parties shall cease as of the date of the damage or destruction, and Tenant
shall be entitled to the reimbursement of any Rent prepaid by Tenant. If Tenant elects to
continue this Lease, then all Rent shall abate until the Premises and/or Structure are restored to
the condition existing immediately prior to such damage or destruction. In the event of a
condemnation of all or any part of the Property, Tenant shall have the right to terminate this
Lease if such condemnation disrupts Tenant's operation at the Property or renders the Premises
unsuitable for Tenant's use. Landlord and Tenant shall each be entitled to pursue their own
separate awards with respect to such taking. Sale of all or part of the Premises to a purchaser
with the power of eminent domain in the face of the exercise of the power shall be treated as a
taking by condemnation.
16) Waiver of Landlord's Lien; Financing. The Structure shall remain the exclusive property of
Tenant. In this regard, Landlord hereby waives any and all lien rights it may have, statutory or
otherwise, concerning the Structure or any portion thereof, as well as and all other installations
made by Tenant at the Premises, whether same are deemed real or personal property under
applicable laws, and Landlord gives Tenant the right to remove all or any portion of same from
time to time. Notwithstanding the aforementioned, Landlord does not waive statutory liens for
non-payment of taxes. Tenant may enter into a secured financing arrangement for which the
Structure or this Lease is security, provided such an arrangement shall not impair or abridge the
rights of Landlord under this Lease and such secured party agrees to be bound by the terms and
provisions of this Lease from the time it succeeds to the interest of Tenant under this Lease.
17) Environmental Laws.
(a) As used herein, the term "Environmental Laws" shall mean any and all local, state or
federal statutes, regulations or ordinances pertaining to the environment or natural resources.
As used herein, the term "Hazardous Substance" shall mean any toxic or hazardous waste,
material, or substance that is regulated by Environmental Laws, including, without limitation,
asbestos and petroleum products; hazardous or solid wastes.
(b) Tenant and Landlord each represent, warrant and agree that it will conduct its activities
on the Property in compliance with all applicable Environmental Laws. Landlord further
represents, warrants and agrees that neither Landlord, nor to Landlord's knowledge, any third
party, has used, generated, stored or disposed of, or permitted the use, generation, storage or
disposal of, any Hazardous Substance on, under, about or within the Property or Premises in
violation of any Environmental Law.
18) Miscellaneous.
(a) This Lease shall run with the Property, and shall be binding upon and inure to the
benefit of the parties, their respective successors, personal representatives and assigns.
(b) This Lease constitutes the entire agreement and understanding of the parties, and
supersedes all offers, negotiations and other agreements. There are no representations or
understandings of any kind not set forth herein. Any amendments to this Lease must be in
writing and executed by the party against whom enforcement is sought.
WEC-NY-22
Town of Wappinger
(c) Each party agrees to cooperate with the other in executing any documents (including a
memorandum of lease and/or easement agreement) in a form reasonably satisfactory to both
parties necessary to protect its rights or use of the Premises. Tenant may record the
memorandum of lease.
(d) Tenant agrees that it will pay or cause to be paid all costs for work done by it or caused
to be done by it on the Premises, and will keep the Premises free and clear of all mechanics'
liens on account of work done by Tenant or persons claiming under it. Tenant may contest the
validity or amount of any such lien and may appeal any adverse judgment or decree, provided,
however, that at the reasonable written request of Landlord, Tenant shall post a bond sufficient
to remove such lien pending contest against the enforcement of the lien against Landlord. If
Tenant shall default in paying any charge for which a mechanic's lien and suit to foreclose the
lien have been filed, and shall not be taking appropriate actions to contest the validity or
amount of such lien with ninety (90) days of the filing of such lien, Landlord may (but shall not
be required to), after written notice to Tenant, pay said claim and the amount so paid shall be
immediately due and owing from Tenant to Landlord, and Tenant shall pay the same to
Landlord upon demand.
(e) This Lease and the rights and obligations of the undersigned parties shall be governed
by and construed in accordance with the laws of the State where the Property is located without
giving effect to principles of conflict of laws. The undersigned hereby irrevocably submit to
the jurisdiction and venue of Supreme Court, Dutchess County, New York, where the Property is
located, over any action or proceeding arising out of any dispute between the undersigned, with
respect to this Lease.
(f) The provisions of this Lease are severable. If a court of competent jurisdiction rules that
any provision of this Lease is invalid or unenforceable, such provision shall be replaced by
another provision which is valid and enforceable and most closely approximates and gives
effect to the intent of the invalid or unenforceable provision. Furthermore, such ruling shall not
affect the validity or enforceability of any other provision of this Lease.
(g) Any consent required hereunder shall not be unreasonably withheld, conditioned, or
delayed.
(h) This Lease may be executed in any number of counterparts, any of which may be
executed and transmitted by facsimile or other electronic method, and each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
(i) No failure on the part of either party to exercise, and no delay in exercising, any right
under the Lease shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right preclude any other right, all subject to the conditions and limitations contained in the
Lease.
(j) A waiver of any right or remedy by either party at any one time shall not affect the
exercise of such right or remedy or any other right or remedy by that party at any other time. In
order for any waiver to be effective, it shall be in writing, signed by an authorized person or
board, and be express and unequivocal and specify precisely the rights or remedies being
waived. The failure of either party to take any action in the event of any breach by the other
party shall not be deemed or construed to constitute a waiver of any of its rights or to otherwise
affect the right of that party to take any action permitted by the Lease at any other time, in the
event that such breach has not been cured, or with respect to any other breach.
WEC-NY-22
Town of Wappinger
(k) The rights and remedies provided in the Lease are cumulative and not exclusive of any
remedies provided by law, and nothing contained in the Lease shall impair any of the rights of
either party under applicable law, subject in each case to the terms and conditions in the Lease.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date and year first
above written.
LANDLORD: TENANT:
Town of Wappinger
By: Barbara A Gutzler
Title: Supervisor
Wireless EDGE Towers, LLC
By: John E Arthur
Title: President & CEO
WEC-NY-22
Town of Wappinger
EXHBIT A
Description of the Landlord's Property
That certain parcel of real property located in the Town of Wappinger, County of Dutchess,
State of New York, designated on the Tax Map as Parcel Number 135689-6357-01-114590 and
commonly known as 30 Soccerfield Drive, along with non-exclusive access and utilities
through Parcel Number 135689-6357-01-083625 and commonly known as 35 Soccerfield
Drive, a portion of which property is more particularly shown on Exhibit B attached hereto.
Legal Description:
This Exhibit A may be substituted for Metes and Bounds description of the Properties.
WEC-NY-22
Town of Wappinger
EXHIBIT B
Description of the Leased Premises
WEC-NY-22
Town of Wappinger
EXHIBIT C
The Structure
WEC-NY-22
Town of Wappinger
EXHIBIT D
Antenna Site Management Responsibilities
Wireless EDGE Towers, LLC or it affiliate ("Wireless EDGE") shall perform any or all of the
services that are the subject of this Agreement. Wireless EDGE shall be the site manager for
subleasing of the Premises and the Structure.
Wireless EDGE will perform the following site management services for the Premises:
1) Market Facility to Wireless Carriers
a) Contact potential tenants.
b) Determine tenants' current & future requirements.
c) Develop sublease template.
d) Develop site application form and installation requirement specification.
e) Actively market the site from time to time in conjunction with tenants' build-outs and
available space on the site.
2) Tenant Acquisition
a) Review and process tenant's applications.
b) Negotiate subleases.
c) Review tenant's proposed construction drawings with Landlord (where applicable).
d) Review tenant's RF study report (where applicable).
e) Coordinate installation schedule with Landlord.
3) Post Installation Management
a) Inspect site for compliance with approved drawings.
b) Inspect site for general quality of work.
c) Maintain site inventory database of tenants' equipment (antenna. cable_ and ~ah;nPt
level)
d) Coordinate site changes.
e) Monitor sites annually for configuration changes against lease baseline and check
general condition of wireless carrier installations.
f) Maintain facility as necessary.
4) Financial Management
a) Collect and track rent payments.
b) Consolidate rent streams from different tenants.
c) Track annual adjustments to lease payments and notify tenants.
WEC-NY-22
Town of Wappinger