HomeMy WebLinkAbout2009-01-26 09-065 ORDERVVNI\ViL 11l..I iVl\
Item No. 09 065
Date: 1-26-09
Item/Subject: ORDER, Authorizing the Execution of Lessor's Consent to Sublease — WNC
Bangor Company LLC, d/b/a Bangor Four Points by Sheraton
Responsible Department: Legal
Commentary:
The City of Bangor and New Castle Hotel Corporation entered into an Amended and Restated
Agreement of Lease dated December 1, 1997 leasing New Castle certain land located at Bangor
International Airport upon which is located the Bangor Four Points Sheraton. The Lease was
assigned to WNC Bangor Company LLC as of January 1, 2008.
WNC Bangor has requested that the City consent to a sublease between WNC Bangor and
Omnipoint Communications, Inc. WNC wishes to sublet a portion of the premises to Omnipoint
to allow it to install telecommunication equipment.
The lease with the City provides that the Lessee shall not sublet any part of the premises
without written consent of the City, "which will not be unreasonably withheld."
This has been reviewed by the Transportation and Infrastructure Committee which
recommended approval subject to there being no issues with the FAA regarding the total height
of the building and antenna. The antenna will be 18 inches high and will be on the roof. The
roof is at a height of 110 feet. According to the airport staff, construction or alterations of more
than 200 feet in height above ground level require FAA approval. The Lease requires that WNC
Bangor comply with all State and Federal law and regulations including the FAA regulations.
This Order will approve the agreement
Department Head
Manager's Comments:
Recommend approval.
City Manager
Associated Information:
Budget Approval:
Legal Approval:
Introduced for
X Passage
First Reading
Referral
Director
City Solicitor
Page , of _
09 065
Assigned to Councilor D'Errico January 26, 2009
CITY OF BANGOR
(TME.) Order, Authorizing the Execution of Lessors Consent to Sublease — WNC Bangor
Company LLC, d/b/a Bangor Four Points by Sheraton
WHEREAS, the City of Bangor and New Castle Hotel Corporation entered into an Amended
and Restated Agreement of Lease dated December 1, 1997 leasing New Castle
certain premises located at Bangor International Airport upon which is located
the Bangor Four Points Sheraton, which lease was amended by an Amendment
of Lease as of January 1, 2008; and
WHEREAS, the Lease, as amended, was assigned to WNC Bangor Company LLC by an
Assignment and Assumption of Lease Agreement dated as of January 1, 2008;
and
WHEREAS, WNC Bangor wishes to sublet to Omnipoint Communications, Inc. a portion of
the building situated on the premises leased from the City of Bangor, consisting
of existing chases and roof, in order for Omnipoint Communications to provide
various data, entertainment, telecommunications, and information services to the
public;
NOW, THEREFORE, BE IT ORDEREDI BY THE CITY COUNCIL OF THE CITY OF BANGOR THAT
the City Manager is hereby authorized, on behalf of the City of Bangor, to execute a Lessor's
Consent to Sublease by and between the City of Bangor and WNC Bangor Company LLC in
substantially the same form as attached hereto and in final form as approved by the City
Solicitor or Assistant City Solicitor and subject to WNC meeting all FAA requirements.
IN CITY COUNCIL
January 26, 2009
Motion Made and Seconded
for Passage
Passed
CITY CLERK
O R D E R
(TITLE,) Authorizing the Execution of
Lessor s Consent to Sublease - WNC Bangor
Company LLC, dba Bangor Four Points
By Sheraton
Assigned to Couneilwr ��^
A 065
LESSOR'S CONSENT TO SUBLEASE
THIS CONSENT TO SUBLEASE OF A PORTION OF THE LEASED
PREMISES is dated as of the first day of January, 2009 by and between WNC
BANGOR COMPANY LLC, a Delaware limited liability company ("WNC Bangor"
or "LESSEE") and THE CITY OF BANGOR, a municipal corporation organized
and existing under the laws of the State of Maine and located in Penobscot
County, State of Maine ("Bangor" or "LESSOR").
WITNESSSETH
WHEREAS, LESSOR and NEW CASTLE HOTEL CORPORATION,
formerly BHI Inc., a business corporation organized and existing under the laws
of the State of Maine having a place of business in Bangor, Penobscot County,
State of Maine and doing business as the Bangor Four Points by Sheraton
("NEW CASTLE") entered into an Amended and Restated Agreement of Lease
(the "Lease") dated December 1, 1997, demising unto NEW CASTLE all that
certain premises located in the Bangor International Airport, in the City of Bangor,
County of Penobscot, State of Maine, currently known as the Bangor Four Points
by Sheraton (formerly the Bangor Marriott Inn), (the "Premises") as more
particularly described in the Lease, together with the other rights and
appurtenances stated therein, which Lease was amended by an Amendment of
Lease dated as of January 1, 2008; and,
WHEREAS, the Lease, as amended, was assigned from NEW CASTLE to
WNC Bangor by an Assignment and Assumption of Lease Agreement dated as
of January 1, 2008; and,
WHEREAS, WNC Bangor wishes to sublet to Omnipoint Communications,
Inc., a Delaware corporation ("Tenant") a portion of the building now or
hereinafter situated on the Premises leased by it from LESSOR, consisting of the
existing chases and roof, in order for Tenant to provide various data,
entertainment, telecommunication and information services to the public.
NOW, THEREFORE, for and in consideration of the sum of $10.00,
receipt of which is hereby acknowledged by LESSOR, and other good and
valuable consideration, and in accordance with Article XV, Section 1 of the Lease
as amended, LESSOR hereby provides LESSEE with written permission to
sublet to Tenant that portion of the premises as is described in the Rooftop
Lease attached hereto as Schedule A, which sublet shall be subject to the terms,
covenants and conditions contained therein.
IN WITNESS WHEREOF, this Consent to Sublease has been duly
executed by the parties hereto as of the date and year first above written.
WITNESSES
STATE OF
): ss:
COUNTY OF
LESSEE — WNC BANGOR
COMPANY LLC
By
Its:
LESSOR — CITY OF BANGOR
M
Its:
, 2009
Personally appeared , on behalf of the WNC
Bangor Company LLC signer and sealer of the within instrument, and
acknowledged the same to be his free act and deed on behalf of the LESSEE,
before me.
Commissioner of the Superior Court
Notary Public
My commission expires:
STATE OF MAINE )
}: ss:
COUNTY OF )
, 2009
Personally appeared , on behalf of the City of
Bangor signer and sealer of the within instrument, and acknowledged the same
to be his free act and deed on behalf of the LESSOR, before me.
Commissioner of the Superior Court
Notary Public
My commission expires:
39 065
ROOFTOP LEASE
This Rooftop Lease ("Lease") is dated the day of
2008, and is between Omnipoint Communications, Inc., a Delaware corporation, (hereinafter
referred to as `"tenant") and WNC Bangor Company, LLC (hereinafter referred to as
"Landlord").
WHEREAS, Landlord presently owns the building located at 308 Godfrey Boulevard, Bangor,
Maine 04401, (the "Property"); and
WHEREAS, The City of Bangor and New Castle Hotel Corporation entered into an
Amended and Rest4ted Agreement of Lease the "Ground Lease") dated December 1, 1997, for
all that certain premises located in the Bangor International Airport, in the City of Bangor,
County of Penobscot, State of Maine, known as the Bangor Four Points by Sheraton (formerly
the Bangor Marriott Inn), as more particularly described on Exhibits A and B attached to the
Ground Lease, together with the other rights and appurtenances stated therein; and
WHEREAS, the Ground Lease was assigned from New Castle Hotel Corporation to
WNC Bangor Company, LLC by Assignment and Assumption of Lease Agreement dated
January 1, 2008; and
WHEREAS, Tenant desires to provide various data, entertainment, telecommunication
and information services to the public.
NOW THEREFORE, In consideration of the mutual promises and conditions set forth
herein, and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant agree as follows:
1. Definitions.
"Premises" means that portion of the building now or hereafter situated thereon and
owned by Landlord (`Building") consisting of the existing chases and roof (the "Premises").
"Services", whether in singular or plural form, means communications and information
services.
"System" means communications system, including, without limitation, radio
transmitting and receiving antennas, microwave dishes, tower and base equipment shelters
and/or cabinets and related cables and utility lines and a location based system, as such location
based system may be required by any county, state or federal agency/department, including,
without limitation, additional antennas, coaxial cable, base units and other associated equipment.
"Term" means the initial term of this Lease shall be five (S) years commencing on the
Commencement Date, and expiring at midnight on the last day of the initial term (the "initial
Tenn"}. The "Commencement Date" shall be the earlier of (i) the start of Tenant's construction,
(ii) or the obtaining of all necessary government approvals by Tenant, or (iii) One Hundred and
Twenty (120) days after the date of the full execution of this Lease, whichever is earlier.
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"Renewal" means Tenant shall have the right to extend this Lease for four (4) additional
and successive five-year terms (each a "Renewal Term") on the same terms and conditions as set
forth herein except that Tenant shall have no right to extend this Lease beyond the Fourth
Renewal Term and Rent shall be as set forth in the following paragraphs (a) and (b) under the
heading "Rent". This Lease shall automatically renew for each successive Renewal Term unless
Tenant is then in default of this Lease or Tenant notifies Landlord, in writing, of Tenant's
intention not to renew this Lease, at least thirty (30) days prior to the expiration of the Initial
Term or any Renewal Term. if Tenant shall remain in possession of the Premises at the
expiration or earlier termination of this Lease or any Renewal Term without a written agreement,
such tenancy shall be deemed a month-to-month tenancy under the same terms and conditions of
this Lease, except that hold over rent due shall be 150% of the then current rent.
"Rent"
(a) Commencing on the Commencement Date, Tenant shall pay Landlord or its designee,
as rent, One Thousand Eight Hundred and no/100 dollars ($1,800.00) per month {"Renfj. The
first payment of Rent shall be due within five (5) days following the Commencement Date and
shall be prorated based on the days remaining in the month that includes the Commencement
Date, and thereafter Rent will be payable monthly in advance by the first (1 st) day of each month
to Landlord at the address specified in Section 16 below. If this Lease is terminated for any
reason (other than a default by Tenant) at a time other than on the last day of a month, Rent shall
be prorated as of the date of termination and all prepaid Rent shall be immediately refimded to
Tenant Landlord, its successors, assigns and/or designee, if any, shall submit to Tenant an IRS
Form W-9.
(b) Rent will be increased on each annual anniversary of the Commencement Date to an
amount equal to the Rent plus an amount equal to the percentage of the increase in CPI over the
most recently measured twelve (12) month period. For purposes hereof, "CPI" shall mean the
Consumer Price Index -U.S. City Averages for Urban Wage Earners and Clerical Workers (1982-
$4.100) published by the United States Department of Labor, Bureau of Labor Statistics (or a
reasonably equivalent index if such index is discontinued), In no event will the amount of the
monthly/annual installment (as applicable) of Rent due under this Lease following such
adjustment be less than the amount of such installment during the preceding annual period.
Landlord shall send Tenant written notice of the applicable Rent increase for each Lease year
along with documentation evidencing the calculation used to arrive at that figure no less than
thirty (30) days prior to the date the increase in Rent becomes effective.
(e) If any Rent payment due hereunder is not paid when due, then, as an administrative
fee, Tenant shall pay to Landlord $175.00.
"Permitted Use" means the Premises shall be used by Tenant for the transmission and
reception of radio communication signals and for the construction, installation, operation,
maintenance, repair, removal or replacement of the System.
2. Provision of Services on Right of Entry Basis. Landlord hereby grants Tenant the
right to enter the Premises, subject and subordinate to the terms of this Lease and the Ground
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A 065
Lease, so as long as Tenant does not materially or unreasonably interfere with the Landlord's
operation of the Building or Property.
3. Property and Building Access Rights.
A) Landlord hereby grants and conveys to Tenant a non-exclusive license (the
"License") in, on and throughout the Building as are reasonably necessary or useful for the
purposes of (a) Providing Services; and (b) Installing, owning, operating, inspecting, retrieving,
maintaining, testing, replacing, extending, relocating, deactivating and collecting equipment,
adding to, upgrading and removing the System, or any part thereof. Landlord shall take
reasonable measures to provide Tenant's access to those parts of the Premises as is reasonably
necessary in order to provide all those Services and utilize the System. This License shall
remain in effect until terminated by Landlord in accordance with the terms hereof.
B) Tenant shall use its best efforts to submit to Landlord plans and specifications (the
"Planet for the installation of the System showing the size, height and appearance of the
component parts of the installation within two (2) days following the execution of this Lease but
in all events prior to the commencement of its construction, . Landlord shall have the right to
approve the Plans in writing, provided that such approval shall not be unreasonably withheld or
delayed Landlord's approval shall be given or denied within twenty-one (21) days after
submission thereof by Tenant. Failure of Landlord to object or approve within such twenty-one
(21) day period shall be deemed approval. In the event Landlord objects to the Plans,. Landlord's
objections shall be clearly stated in writing and given in accordance with Section 16. If Landlord
objects to the Plans, Tenant shall have the right to resubmit Plans in accordance with the same
approval process as stated above. Tenant may resubmit the Plans for approval by Landlord as
many additional times as is necessary, but if the Landlord objects three or more times to plan
submissions, Tenant will have the right to terminate this lease, whereupon the parties shall have
no further obligations or liabilities to each other. In the event of any conflict between the terms
and conditions of this Lease (including the exhibits hereto) and the Plans which have been
approved by Landlord, then, as to any aesthetic aspects of Tenant's Work so approved (e.g.,
colors and other decorative features), such approved Plans shall prevail.
Q Tenant will provide five (S) days prior written notice to Landlord of the date and time
of that Tenant will require access to the Building for the purposes of installation or repair of said
System or otherwise. ,In cases of emergency, such as in an interruption to the service for
whatever reason, Tenant will contact the Landlord, at the Landlord's twenty four (24) hour
number, for permission and access to the Building, in order to repair any service related issues.
I3) Landlord warrants that it has the right, to the extend permitted in the Ground Lease,
to grant Tenant Easements over the underlying real property and provide access to the Building.
As partial consideration for Rent paid under this Lease, Landlord hereby grants Tenant
easements on, under and across the underlying real property for ingress, egress, utilities and
access (including access for the purposes described in Section I) to the Premises adequate to
install Tenant's System and maintain utilities, including, but not limited to, the installation of
power and telephone service cable, and to service the Premises and the Antenna Facilities at all
tinges during the Initial Term of this Lease and any Renewal Term (collectively, the
"Easements"). The Easements provided hereunder shall have the some term as this Lease.
4. Record Notice of License and A cmeMeut. In connection with this Lease, Landlord and
Tenant shall execute a one-page Memorandum of this Lease, which is to be recorded in the Real
Property Records of the county in which the Premises are located in order to provide record
notice that the Landlord and Tenant have entered into this Lease. Tenant will be responsible for
any fees associated with the recording of the Memorandum. In the future, should any conflict be
found to exist between the provisions of this Lease and said Memorandum, the provisions of this
Lease control and the parties agree to amend and modify the provisions of the Memorandum
accordingly, should either Tenant or Landlord make such request.
S. OOmMegrship of the System. Installation &Electricity.
A) The System, and all of its parts, at all times remains the property of Tenant and
Tenant will exercise the sole rights, dominion and control over the System. Upon termination of
this Lease for any reason, Tenant may, at its option, remove the System or any part thereof, from
the Premises and/or abandon it in place. Upon termination or expiration of this Lease, the
Premises shall be returned to Landlord in good, usable condition, normal wear and tear and
casualty excepted.
B) Tenant shall install the System, at its sole cost, expense and risk and shall do so in a
' good, workmanlike manner and in compliance with all federal, state and local building, zoning,
electric, telecommunications and safety codes, ordinances, standards, regulations, laws and
requirements, including without limitation, those of the Federal Communications Commission
("FCC"). Tenant, at its sole cost and expense, shall obtain any permits, licenses, variances, or
other approvals required with respect to the installation or operation of the System to be installed
or the alterations to be performed by Tenant. Tenant shall deliver true and complete copies
thereof to Landlord prior to commencing any installations or alterations.
Q Tenant shall notify the Landlord of Tenant's desire to abandon the System in place.
Should Landlord receive written notification by Tenant of Tenant's desire to abandon the System
in place, said System shall then become the property of Landlord at no cost whatsoever to
Landlord, at which time Landlord may retain and/or remove all components of the System
without notice to Tenant. At such time as Tenant notifies Landlord of its decision to abandon the
System, Landlord will instruct Tenant whether or not to remove the wiring, at Tenant's cost, or
leave the System in place as is.
D) Landlord will provide electricity, on an as needed basis, for the System to Tenant and
provide Tenant access to the Premises' electrical system. Tenant must notify Landlord, in
advance, of Tenant's need to gain access to the electrical system. Landlord has the right to
charge Tenant for its use of the system and electric consumption.
6. Alterations to Premises.
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A) Tenant is liable for alterations it makes to the Premises and installation, inspection,
removal, maintenance, testing, replacement, relocation or upgrading of the System and will be
responsible for repairing and/or replacing any damage to any area of the Property caused by or
resulting from Tenant's agents, employees and/or contractors installation of the System and/or
the continued use of the Premises. Landlord shall notify Tenant within 10 business days of any
damageshepairs that Landlord believes to have been caused by Tenant. Tenant will meet with
Landlord or Landlord's representative at the Premises within 2 business days after notice, to
review damages and determine if Tenant is responsible and if so, how Tenant will correct
damages. Tenant will be given a reasonable amount of time to determine a method to correct any
alterations and/or damage and will present the plan to the Landlord for approval, which shall not
be unreasonably withheld.
B) In no event shall Landlord be liable to Tenant for damages to the System unless the
Landlord is directly responsible for the damage, including any damage or interruption due to the
failure of service from a utility company or due to any casualty or condemnation.
7. Right to Relocate.
a. After the expiration of the Initial Term, in the event Landlord desires to change the
Building design, Landlord shall have the one-time right upon six (6) months prior written notice
to Tenant (the "Relocation Notice") to relocate the System, or any part thereof, to an alternate
location on the Property designated by Landlord; provided, however, that such relocation will: (i)
be at Landlord's sole cost and expense, (ii) be performed exclusively by Tenant or its agents, (iii)
not result in any interruption of the communications service provided by Tenant at the Property,
and (iv) not impair, or in any manner alter, the quality of communications service provided by
Tenant on and from the Property. Upon relocation of the System, the access and utility
casement(s) of Tenant will be relocated as required, in the sole discretion of Tenant, to operate
and maintain the System of Tenant. Provided however, that in no event shall Landlord
unilaterally elect to relocate the System in order to accommodate another telecommunications
carrier, licensee or tenant at the Property. In order to maintain operations from the Property,
Tenant shall be permitted to erect temporary facilities at a location satisfactory to both Tenant
and Landlord for the duration of the relocation work, which temporary facilities shall be subject
to the terns hereof. Tenant shall remove the temporary facilities upon completion of the
relocation and Tenant's permanent installation at the Relocation Site.
b. Landlord shall exercise its relocation right under subparagraph a, above, by (and only
by) delivering the Relocation Notice to Tenant. In the Relocation Notice, Landlord will propose
an alternate site on the Property to which Tenant may relocate the System. Tenant will have
sixty (60) days from the date it receives the Relocation Notice to evaluate Landlord's proposed
relocation site, during which period Tenant will have the right to conduct tests to determine the
technological feasibility of the proposed relocation site. If Tenant fails to approve of such
proposed relocation site in writing within such sixty (60) day period, then Tenant will be deemed
to have disapproved such proposed relocation site. If Tenant disapproves such relocation site,
then Landlord may thereafter propose another relocation site by notice to Tenant in the manner
set forth above. Any relocation site which Landlord and Tenant agree upon in writing is referred
to hereinafter as the "Relocation Site". Tenant will have a period of ninety (90) days after
5
09 065'
execution of a written agreement between the parties concerning the location and dimensions of
the Relocation Site to relocate (at Landlord's expense) the System to the Relocation Site.
c. Upon relocation of the System, or any part thereof, to the Relocation Site, all
references to the Premises in the Lease will be deemed to be references to the Relocation Site.
Landlord and Tenant hereby agree that Tenant shall provide a plan showing the Relocation Site
and System which will replace the Plans approved under the terms of this lease and will control
or describe the Relocation Site. The Relocation Site (including the access and utility right of
way), at Tenant's option, may be surveyed by a licensed surveyor at the sole cost of Tenant.
Except as expressly provided in this paragraph, Landlord and Tenant hereby agree that in no
event will the relocation of the System or any part thereof, under this section, affect, alter,
modify, or otherwise change any of the terms and conditions of this Lease.
8. Assiggment and Subletting. Anything set forth in this Lease to the contrary
notwithstanding, Tenant will not assign or transfer this Lease without the prior written consent of
Landlord, which consent will not be unreasonably withheld, delayed or conditioned; provided,
however, Tenant may assign without Landlord's prior written consent, to a parent, to any party
controlled by, or under common control with Tenant or to any party which acquires 51 % or more
of the stock or assets of Tenant.
Any assignment, subletting or transfer of Tenant's interest in this Lease (or the Premises) is
subject to the satisfaction of the following conditions: (a) any such assigaanent, subletting or
transfer shall be subject to all of the terms, covenants and conditions of this Lease; (b) the use of
the Premises by any assignee, subtenant or transferee must be identical to Tenant's use of the
Premises; and (c) the assignee or transferee shall deliver an instrument in writing to Landlord
pursuant to which it assumes all of Tenant's obligations under this Lease.
Landlord agrees that upon any transfer or assignment of Tenant's interest in this Lease by Tenant
accomplished in accordance with the terms of this Lease, Tenant shall be relieved of all future
performances, liabilities and obligations under this Lease arising after the date of such
assignment, provided that the assignee or transferee becomes bound to Landlord under this Lease
by signed written instrument delivered to Landlord.
9. Indemnification. Landlord and Tenant each agree to indemnify, defend and hold
harmless the other party from and against any and all claims, actions, damages, costs and
expenses, including reasonable attorney fees, for negligence, omissions or willful misconduct, to
the extent caused by or arising out of operations or activities on the Property by the indemnifying
party or the employees, agents, contractors, licensees, tenants and/or subtenants of the
indemnifying party, and for breach of any obligation of the indemnifying party under this Lease;
provided, however, this indemnification shall not extend to indirect, special, incidental or
consequential damages, including, without limitation, loss of profits, income or business
opportunities to the indemnified party or anyone claiming through the indemnified party.
10. liability JaLwWce. At all times during the term of this Lease, Tenant, its agents and
subcontractors shall, at its sole cost and expense, maintain personal injury and property damage
liability insurance, naming the Landlord and its managing agent as primary additionally insured
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parties, against claims for personal injury, heath or property damage occurring on, in or about the
Premises during the term of this Lease in an amount not less than Three Million Dollars
($3,000,000.00) with respect to personal injury, death or property damage and including
contractual liability coverage. In the event that Tenant shall not have delivered to Landlord a
policy or endorsement evidencing such insurance fifteen (15) days after the effective date of this
Lease and fifteen (15) days prior to the expirations dates of each expiring policy then, if after
five (5) days notice by Landlord of the need for updated proof of this insurance, Landlord may
obtain such insurance as it may reasonably require to protect its interest, and the cost for such
policies and endorsements shall be paid by Tenant to Landlord, plus ten percent (10%)
administrative charge.
(a) Landlord will maintain Commercial General Liability Insurance in amounts of One
Million and no/100 Dollars ($1,000,000.00) per occurrence and Three Million and no/100
Dollars ($3,000,000.00) aggregate.
(b) Tenant and Landlord shall each maintain "all risk" or "special causes of loss"
property insurance on a replacement cost basis for their respective owned real and/or personal
property.
(c) Landlord and Tenant hereby mutually release each other (and shall cause their
respective insurers to) (and their successors or assigns) from liability and waive all right of
recovery against the other for any loss or damage covered by their respective first party property
insurance policies for all perils insured thereunder. In the event of such insured loss, neither
party's insurance company shall have a subrogated claim against the other.
(d) Notwithstanding anything to the contrary in this Lease, the parties hereby confirm that
the provisions of Section 10(c) and (e) shall survive the expiration or termination of this Lease.
(e) Tenant shall not be responsible to Landlord, or any third -party, for any claims, costs
or damages (including, fines and penalties) attributable to any pre-existing violations of
applicable codes, statutes or other regulations governing the Property.
11. Effective Date. Upon full execution of this Lease by both parties hereto.
12. Subordination to Mortgages. This Lease and all the rights of Tenant hereunder are and
shall be subject and subordinate to the lien of any mortgage or mortgages, whether fee or
leasehold mortgages, which may now or hereafter affect the Property and Building, and to all
renewals, modifications, consolidations replacements and extensions thereof and advances
thereunder.
13. lnterfereneg. Tenant shall not use the Premises in any way which (i) interferes with the
use of the Property by Landlord, or lessees or licensees of Landlord, with equipment installed
prior to the execution of this Lease (subject to Tenant's rights under this Lease, including,
without limitation, non-interference), or (ii) violates or threatens to violate any rule, regulation or
interferes with any facility or operation governed by the Federal Aviation Administration
("FAA"} or FCC. Similarly, Landlord shall not use, nor permit its lessees, licensees, employees,
09 Q6
invitees or agents to use, any portion of the Property in any way which interferes with the
operations of Tenant. Such interference shall be deemed a material breach by the interfering .
party, who shall, upon written notice from the other, be responsible for terminating said
interference. In the event any such interference does not, despite the interfering party's best
efforts, cease promptly, the parties acknowledge that continuing interference may cause
irreparable injury and, therefore, the injured party shall have the right, in addition to any other
rights that it may have at law or in equity, to bring a court action to enjoin such interference or to
terminate this Lease immediately upon written notice.
14. Liens. Tenant shall cause all work at the Premises to occur lien -free and in compliance
with all applicable laws and ordinances. Landlord acknowledges that it shall not intentionally
interfere with any aspects of construction. Tenant shall, within twenty (20) days, bond or
remove any lien filed against the Property based upon any act of Tenant or anyone claiming
through Tenant.
15. Termination. Except as otherwise provided herein, this Lease may be terminated as
follows:
(a) by Landlord if Tenant fails to cure a default for payment of amounts due under this
Lease within twenty (20) days following written notice of such default;
(b) upon thirty (30) days' written notice by Tenant given at any time following the
expiration of the Initial Term if the Property, or the Building is proven to be unacceptable under
Tenant's design or engineering specifications for its System or the communications system to
which the System belong, provided Tenant pays Landlord a termination fee equal to six (6)
months of the then -current Rent as liquidated damages;
(c) immediately upon written notice by Tenant if the Building is destroyed or damaged so
as in Tenant's reasonable judgment to substantially and adversely affect the effective use of the
System, and if Landlord is unable to provide reasonably satisfactory temporary facilities at the
Property. 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 (or a proportionate part
thereof, as appropriate) until the Building is restored to the condition necessary to permit Tenant
to construct the System to resume its activities in a manner substantially identical to its activities
immediately prior to such damage or destruction. In the event Landlord elects to repair or
restore the Building and the repairs or restoration are not completed, to the extent required under
the immediately preceding sentence, within four (4) months of the casualty such that Tenant
cannot reconstruct its System at the Prernises, then, at any time thereafter until such repairs or
restoration have been completed to the extent required under the immediately preceding
sentence, Tenant may terminate this Lease without finther obligation. Tenant may locate
temporary facilities at the Property in a mutually agreeable site during such time as its use of the
Premises is interrupted so as to continue to transmit and receive from the Property until a
successor site at the Property is located or the repairs or restoration are complete. Tenant's use
of such temporary location shall be governed by all of the terms and conditions set forth in this
Lease, including, without limitation, the obligation to pay Rent in the amounts set forth herein;
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(d) at the time title to the Property transfers to a condemning authority pursuant to a
taking of all or a portion of the Property sufficient in Tenant's reasonable determination to render
the Premises unusable 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 Property 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; or
(e) by Tenant within thirty (30) days after written notice to Landlord in the event of a
material breach by Landlord in which Landlord prevents Tenant from using its System as
permitted by the provisions of this Lease;
(f) immediately upon written notice from Tenant if Tenant notifies Landlord within
twenty (20) days from the date of this Lease, of any results of any tests performed prior to
Tenant's installation of the System at the Premises which prevents Tenant from installing its
System as set forth in this Lease;
(g) immediately upon written notice from Tenant if Tenant does not obtain or maintain
despite Tenant's best efforts the Governmental Approval(s) which may be necessary for the
installation and/or operation of the System or Tenant's business as set forth herein; provided
Tenant pays Landlord as liquidated damages an amount equal to the greater of $10,800.00 or six
(6) months of the then -current Rent;
(h) immediately upon written notice from Tenant if Tenant does not obtain, despite
Tenant's best efforts, the Governmental Approval(s) which are be necessary for the installation
and/or operation of the System or Tenant's business as set forth herein;
(i) upon twenty (20) days written notice from Tenant if Tenant does not maintain, despite
Tenant's best efforts, the Governmental Approval(s) which shall be necessary for the operation
of the System or Tenant's business as set forth herein; and
0) by Landlord if Tenant fails to perform any other obligation it has under this Leas
within thirty (30) days after written notice from Landlord.
16. Notices. All notices, requests, demands and other communications shall be in writing
and are effective three (3) days after deposit in the U.S. mail, certified and postage paid, or upon
receipt if personally delivered or sent by next -business -day delivery via a nationally recognized
overnight courier to the addresses set forth below. Landlord or Tenant may from time to time
designate any other address for this purpose by providing written notice to the other party.
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If to Tenant, to:
Omnipoint Communications, Inc.
Attn: Property Management
4 Sylvan way
Parsippany, NJ 07054
If to Landlord, to:
With a copy to:
T -Mobile USA, Inc.
Attn: PCS Lease Administrator
12920 SE 38th Street
Bellevue, WA 98006
With a copy to: Attn: Legal Dept
With a copy to:
WNC Bangor Company, LLC The Widewaters Group, Inc.
c% New Castle Hotels Attn: Lease Administration Dept.
Attn: Bryan Woodhouse 5786 Widewaters Parkway
2 Corporate Drive, Suite 334 P.O. Box 3
Shelton, CT 06494 DeWitt, NY 13214
17. Quiet Bnjovm= Title and Authority. As of the Effective Date Landlord has full right,
Power and authority to execute and perform this Lease. Tenant's quiet enjoyment of the
Premises or any part thereof shall not be disturbed by Landlord or anyone claiming under
Landlord as long as Tenant is not in default beyond any applicable grace or cure period.
18. Waiver of Landlord's Lien. Landlord waives any lien rights it may have, concerning the
System or any portion thereot which shall be deemed Tenant's personal property and not
fixtures, and Tenant has the right to remove the same at any time without Landlord's consent.
19. Taxes. Tenant shall pay any personal property tax, real property tax or any other tax or
fee which is directly attributable to the presence or installation of Tenant's System, only for so
long as this Lease remains in effect. If Landlord receives notice of any personal property or real
property tax assessment which may affect Tenant and is directly attributable to Tenant's System,
Landlord shall provide notice of the assessment to Tenant so that Tenant may consent to or
challenge such assessment whether in a Court, administrative proceeding or other venue;
however, in no event shalt Tenant endanger the tax status of the Property.
20. Environmental Laws. Tenant shall, at all tinges, comply with all local and federal laws,
rules and regulations governing the use, handling and disposal of Hazardous Materials at the
Premises and Building including, but not limited to Section 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et. seq. (42 U.S.C. Section 6903) and
any additions, amendments, or modifications thereto. As used herein, the term "Hazardous
Materials" shall mean any hazardous or toxic substance, material or waste including but not
limited to petroleum products, which is, or becomes, regulated by any local or state government
authority in which the Premises is located or the United States Government.
Landlord shall, at all times, comply with all local, state and federal laws, rules and
regulations governing the use, handling and disposal of Hazardous Material in or on the
Building.
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Landlord agrees that it shall bear all loss, cost, expense and damage (including reasonable
attorneys' fees and the cost of any clean-up which may be required by any regulatory or
govemmental agency), in connection with Landlord's possession, use, disposal or storage of
Hazardous Materials in, on, over or across the Building.
Landlord and its agents shall have the right, but not the duty, to inspect the premises at
any time to determine whether Tenant is complying with the terms of this Section. If Tenant is
not in compliance with this Section, Landlord shall have the right to immediately enter upon the
Premises and take whatever actions reasonably necessary to comply including, but not limited to,
the removal from the Premises of any Hazardous Materials and the restoration of the Premises to
a clean, neat, attractive, healthy and sanitary condition. Tenant shall pay all such costs incurred
by Landlord (including reasonable attorneys fees) within thirty (30) days of receipt of a bill
therefor.
21. Miscellaneous
(a) The prevailing party in any litigation arising hereunder shall be entitled to
reimbursement from the other party of its reasonable attorneys' fees and court costs, including
appeals, if any.
(b) This Lease constitutes the entire agreement and understanding of the parties, and
supersedes all offers, negotiations and other agreements with respect to the subject matter and
property covered by this Lease. Any amendments to this Lease must be in writing and executed
by both parties.
(c) This Lease shall be construed in accordance with the laws of the state in which the
Property is located, without regard to the conflicts of law principles of such state.
(d) if any term of this Lease is found to be void or invalid, the remaining terms of this
Lease shall continue in full force and effect. Any questions of particular interpretation shall not
be interpreted against the drafter, but rather in accordance with the fair meaning thereof. No
provision of this Lease will be deemed waived by either party unless expressly waived in writing
by the waiving party. No waiver shall be implied by delay or any other act or omission of either
party. No waiver by either party of any provision of this Lease shall be deemed a waiver of such
provision with respect to any subsequent matter relating to such provision.
(e) The persons who have executed this Lease represent and warrant that they are duly
authorized to execute this Lease in their individual or representative capacities as indicated.
(f) This Lease may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute a single instrument. This Lease
may be executed by facsimile or electronic signature. The parties agree that facsimile or
electronic copies of signatures have the same effect as original signatures; however, the parties
agree to subsequently deliver original, signatures.
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(g) If either party is represented by any broker or any other leasing agent, such party is
responsible for all commissions, fees, or other payments to such agent, and agrees to indemnify
and hold the other party harmless from all claims by such broker or anyone claiming through
such broker.
(h) This Lease is binding upon and inures to the benefit of the parties hereto and their
respective officers, directors, shareholders, partners, agents, representatives, employees, servants,
affiliates, attorneys, heirs, successors and assigns.
(i) The period of time during which either party is prevented or delayed in any
performance or the making of any improvements or repairs or fulfilling any obligation under this
Lease, other than the payment of Rent and Additional Rent, due to unavoidable delays caused by
fire, catastrophe, strikes or labor trouble, civil commotion, acts of God, the public enemy,
governmental prohibitions or regulations or inability to obtain materials by reason thereof, or any
other causes beyond such party's reasonable control, shall be added to such party's time for
performance, and such party shall have no liability by reason of such delay.
- SIGNATURES ARE ON THE IMMEDIATELY FOLLOWING PAGE -
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Landlord and Tenant have executed this Lease effective as of the date of execution,
which is first stated above.
LANDLORD:
WNC BANGOR COMPANY, LLC
By:
Bryan Woodhouse, Manager
TENANT:
OMNIP'OINT COMMUNICATIONS, INC.
By:
Anne Patrick, Area Director
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