Canton, Massachusetts · Saved source text
Lease Agreement - Metro PCS
Saved text from 25 source pages. Transcription and OCR may contain errors; verify figures and wording against the original. Retrieved 2026-10-15.
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FINAL COMMUNICATIONS SITE LEASE AGREEMENT THIS COMMUNICATIONS SITE LEASE AGREEMENT (“Lease”) is entered into this day of 4-14-04 , 2009 (“Effective Date”), by and between the Town of Canton, Massachusetts , a Massachusetts municipal corporation (“Town”), with its principal offices at 801 Washington Street, Canton, MA 02021, and MetroPCS Massachusetts LLC, a Delaware limited liability company (“Tenant”),with its principal offices at 385 Billerica Road, Chelmsford, MA 01824. RECITALS A. Town is the owner a parcel of land located at 2438 Washington Street, Canton, MA Massachusetts, described in Exhibit A, attached to and made a part hereof. B. Tenant is in the communications business and desires to lease the Premises described below from the Town for the examination, construction, installation, operation and maintenance and removal of a Communications Facility on the Premises. NOW THEREFORE, for and in consideration of the mutual obligations and covenants set forth herein, the parties hereto agree as follows: 1. Definitions The following terms shall have the meanings indicated: “Commencement Date” shall mean the earlier of (i) the date on which the Tenant is issued a building permit for the work contemplated in connection with the Tenant’s Use and (ii) June 1, 2009. “Communications Facility” shall mean facilities, equipment and other aspects of the Tenant’s Proposal. “Government Approvals” shall mean all federal, state and local licenses and permits required for Tenant's Use of the Premises. “Hazardous Material” shall have the meaning set forth in Section 7(d) of this Lease. “Initial Improvements” shall mean improvements to the parcel described on Exhibit A to be constructed by the Town which may, but shall not necessarily, include the construction of a ADA-compliant access ramp and reconstruction of a stone wall on the property. SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 1
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“Premises” shall mean (i) a location on the antenna monopole that is an improvement to
the parcel of real property described in Exhibit A and (ii) areas of the parcel generally
identified in the Proposal as locations for the Tenant’s auxiliary improvements and
equipment. subject to such final location of the auxiliary equipment and improvements as
may be agreed upon by the parties.
“Proposal” shall mean the proposal dated January 23. 2009 submitted by Tenant to the
Town in response to the RFP.
“RFP” means the Town’s Request for Proposals — Ponkapoag School Lot, together with
all addenda thereto.
“Tenant’s Use” shall mean constructing. installing. maintaining. improving. operating
and removing a Communications Facility on the Premises, including connection to
electrical and other utilities reasonably necessary therefor.
“Term” shall mean the term of this Lease as set forth in Section 3(a).
2. The Premises
Subject to the terms and conditions of this Lease. the Town hereby leases to the Tenant the
Premises for Tenant's Use.
Town also grants to Tenant a non-exclusive easement during the Term of this Lease for ingress
and egress and for the installation and transmission of utilities on and under such other property
of the Town that is reasonably necessary for the purpose of providing periodic and as-needed
maintenance, repairs and other necessary service to each facility located on the Premises. Access
shall be limited to the access points and areas to be designated by the Town. Access shail also be
limited to employees, contractors and agents authorized to enter the Site by the Tenant.
3. Term
(a) Initial Term. The initial term of this Lease shall commence on the Effective Date
and expire ten (10) vears after the Commencement Date. unless extended or sooner
terminated in accordance with this Lease.
(b) {Intentionally Deleted]
4. Grant for Site Improvements
The Tenant will make a grant to the Town in the amount of Fifty Thousand dollars ($50.000)
upon the execution of this Lease by Tenant, which grant shall be used by the Town to construct
Initial Improvements or such other improvements as the Town, in its sole discretion, deems
appropriate. The grant made to the Town in accordance with this Section is non-refundable to
Tenant.
SITE ID: BOS0262A
SITE NAME: CANTON FLAGPOLE RFP 2Source page 3
6. Rent (a) Beginning on the Commencement Date, Tenant shall pay Town the sum of Thirty-Seven Thousand Two Hundred dollars ($37,200) per year as rental, in monthly payments of Three Thousand One Hundred dollars ($3,100), adjusted annually as set forth on Exhibit B, attached hereto. (b) Rent shall be payable on the first day of each month of lease year in advance to the Town at Town's address set forth above or as otherwise specified by Town. Tenant shall pay to the Town a late payment charge equal to five percent (5%) of the amount due and owing for any rent not paid within fifteen (15) days of the due date. Any amounts not paid on a timely basis as described above shall also bear interest until paid at the lesser of the rate of two percent (2%) per month or the highest rate permitted by law. Town’s Representations and Warranties; Quiet Enjoyment Town represents, warrants and undertakes: 7. (a) The Town has the full right, power and authority to execute this Lease. (b) If Tenant pays the rent and other amounts as and when due and otherwise performs and observes the other obligations and liabilities of Tenant under this Lease, Tenant shall peacefully and quietly have, hold, and enjoy the Premises without any manner of hindrance or molestation by Town or anyone else claiming by, through, or under the Town. Tenant’s Representations, Warranties and Undertakings Tenant represents, warrants and undertakes: (a) Use of Premises. Tenant shall occupy and use the Premises for the Tenant’s Use and no other purpose, and Tenant shall occupy the entire Premises during the Term of this Lease and any renewal thereof, except as otherwise set forth herein. Tenant shall not (i) permit or do anything that is contrary to any law or regulation of any federal, state or local governmental body or agency, including, but not limited to, laws and regulations relating to health, safety, radio frequency emissions and radiation; or (ii) permit or do anything that is contrary to any covenant, condition or restriction affecting the Premises. (b) Non-Interference. (i) Tenant shall not interfere with the current use by the Town of or adjacent to the Premises; SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 3
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(ii) Tenant shali be responsible for taking reasonable precautions to prevent radio frequency interference to other tenant(s), the Town, residents and businesses. Tenant and other tenants shall resolve any such interference that it causes within thirty days notice by the Town, either individually or jointly as the case may be. In addition, any tenant subsequently installing Communications Facilities or equipment shall be responsible for the cost of resolving any interference caused by the installation of those Communications Facilities, including the cost of supplying and installing equipment on the facilities of other tenants as necessary to resolve such interference, so long as such affected facilities of other tenants have been installed and maintained according to good engineering practice. When complaints of interference last more than thirty (30) days, all equipment shall be shut down until such time as the interference issues are resolved. (c) Radio Frequency Energy Safety Compliance. (1) The Communications Facility and each of its components shall comply with applicable state and federal laws and regulations regarding human exposure to radio frequency energy. Tenant(s) shall jointly reimburse the Town for the cost of an inspection and evaluation of the radio frequency emissions at the Premises to verify compliance with such regulations. Such inspections are at the Town’s discretion and shall occur no more often than annually, except when substantial changes or additions to a Facility under lease give reasonable cause to conduct a special inspection. Tenants shall provide documentation necessary and shall cooperate with the inspector to enable an evaluation that is sufficient for determining compliance. Compliance may be determined by computation, visual inspection, and/or measurement as conditions warrant. The inspector shall employ currently accepted evaluation methods, such as those contained in FCC Office of Engineering and Technology Bulletin 65. (ii) | Before making any changes in the equipment or operating parameters that materially affect their radio frequency emissions, Tenant and subtenant(s) shall inform the Town in writing of their plans to make such changes. The Town may require Tenant or subtenant to supply information about the radio frequency emissions of its equipment whenever the Town has reason to believe a material change in emissions has occurred. (d) Hazardous Material. Tenant shall not cause or permit any Hazardous Material to be brought upon, kept or used in or about the Premises by Tenant, its agents, employees, contractors or invitees, without the prior written consent of the Town, which consent may be withheld for any reason or for no reason. The above prohibition notwithstanding, the Town hereby consents to Tenant’s storage of oil and fuel but solely for purposes of operating an emergency generator in the event of a power outage. (e) Hazardous Material Indemnity. Tenant shall indemnify, defend and hold the Town, its officers, officials, employees and agents, harmless from and against any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses which arise during SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 4
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or after the Lease Term as a result of (i) Tenant’s breach of the obligations stated in this Section 7(e) or (ii) the presence of Hazardous Material on the Premises caused or permitted by Tenant or Tenant’s subtenant or licensee. This indemnification of the Town by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil on or groundwater under or within the Premises caused or permitted by Tenant, or Tenant’s subtenant or licensee, results in any contamination of the Premises or elsewhere, Tenant shall promptly take all actions at its sole expense as are necessary to return the Premises to the condition existing prior to the introduction of any such Hazardous Material to the Premises. (f) Definitions. As used in this Lease, the term “Hazardous Material” means any hazardous or toxic substance, material or waste, which is or becomes regulated by any local governmental authority, the Commonwealth of Massachusetts or the United States. The term “Hazardous Material” includes, without limitation, any material or substance that is (i) defined as a “hazardous substance” under applicable law, (ii) petroleum, (iii) asbestos, (iv) designated as a “hazardous substance” pursuant to Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. Section 1321, (v) defined as a “hazardous waste” pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6903, (vi) defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 or (vii) defined as a “regulated substance” pursuant to Section 9001, Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. Section 6991. (g) Covenant Against Mechanics’ or Materialmen’s Liens. Tenant covenants and agrees not to suffer or permit any mechanics', materialmen's, contractors, or subcontractors' liens arising from any construction work, repair, restoration, or removal or any other claims or demands to be enforced against the Premises or the Communications Facility. If such lien is placed against the Premises, Tenant shall cause such lien to be discharged by payment to the filing party or by providing a bond for the discharge of such lien and have the lien removed within Thirty (30) days following receipt of notice of such lien. Tenant has no authority or power to cause or permit any lien or other encumbrance created by act of Tenant, operation of law, or otherwise, to attach to or be placed upon the Town's title or interest in the Premises. Any such lien or encumbrance shall attach, if at all, only to Tenant's leasehold interest in the Premises. (h) Waiver of Claims. Neither Tenant nor Town shall be responsible or liable to the other for any loss or damage arising from any claims to the extent attributable to destruction or damage to the Communications Facility. Under no circumstances shall either party to this Lease be liable for any incidental, consequential, punitive or special damages of any nature whatsoever arising out of or in connection with this Lease including, without limitation, lost profits or loss of business. SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 5
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(i) Indemnification. Tenant agrees to indemnify, defend, save and hold harmless the Town, its departments, officers, officials, employees and agents (hereinafter referred to as “Indemnitee”) from and against any and all claims, demands, actions, liabilities, damages, losses, or expenses (including court costs, attorney’s fees, and costs of claim processing, investigation and litigation) of every kind and nature whatsoever (hereinafter collectively referred to as “Claims”) which may in any manner arise out of or relate to Tenant’s design, construction, installation, maintenance, operation or removal or other use of the Communications Facility or the Premises, or for the performance or non- performance of this Lease by Tenant and its subtenants or their respective subcontractors, employees, agents or assigns, and as to such claims, actions or causes of action arising from or resulting from any negligence or intentional misconduct by Tenant or its subtenants or their respective subcontractors, agents, servants, or employees. This indemnity includes any claim or amount arising or recovered under the Workers’ Compensation Law or arising out of the failure of Tenant or any subtenant to conform to any federal, state or local law, statute, ordinance, rule, regulation or court decree. It is agreed that Tenant will be responsible for primary loss investigation, defense, and judgment costs where this indemnification is applicable. The foregoing indemnity by Tenant shall extend, but not be limited, to: (i) construction by or through Tenant or any subtenant of the Communications Facility or any other work or thing done in, on or about the Premises or any part thereof; (ii) Tenant’s Use, possession, occupation, alteration, repair, condition, operation, maintenance or management of the Premises and Communications Facility, areas adjacent thereto or improvements thereon by or through Tenant or any subtenant, (iii) any act or failure to act by Tenant or any subtenant or licensee or any of its or their respective agents, contractors, servants, employees, licensees or invitees; (iv) any tax which Tenant or any subtenant is obligated to pay or cause to be paid, including any tax attributable to the execution, delivery or recording of this Lease. The foregoing provisions shall survive the expiration or earlier termination of this Lease to the extent the act, error, omission, negligence or alleged negligence arose prior to such expiration or termination. The Town shall not be responsible or liable to Tenant or subtenant(s), or to those claiming by, through or under the Tenant or subtenant(s), for any loss or damage that may be occasioned by or through the acts or omissions of other Tenant or subtenant(s) or third parties. In no event shall the Town be liable for any indirect or consequential or punitive damages, loss of profit or the like. SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 6
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To the fullest extent permitted by law, no official, employee, agent or representative of the Town shall be individually or personally liable for any obligation or liability of the Town under the Lease. Tenant will hold all goods, materials, furniture, fixtures, equipment, machinery and other property whatsoever on the Premises at the sole risk of Tenant, and, to the extent set forth above, save the Town harmless from any loss or damage thereto by any cause whatsoever. The obligations of Tenant under this section shall not in any way be affected by the absence in any case of covering insurance or by the failure or refusal of any insurance carrier to perform any obligation on its part to be performed under insurance policies affecting the Lease. If any claim, action or proceeding is made or brought against the Town by reason of any event, specified or unspecified, which is the subject of Tenant’s foregoing indemnity, then, upon demand by the Town, Tenant, at its sole cost and expense, shall resist or defend such claim, action or proceeding in the Town name. Notwithstanding the foregoing, the Town may engage its own attorneys to defend it or to assist in its defense, and Tenant shall pay the reasonable fees and disbursements of such attorneys. Town shall defend, indemnify and hold Tenant and its officers, employees, and agents, harmless from and against any and all claims, demands, actions, liabilities, damages, losses or expenses (including court costs, reasonable attorneys' fees, and reasonable costs of claim processing, investigation and litigation) of every kind and nature whatsoever, arising from Town's use or occupancy of the Premises for purposes of constructing, operating and/or maintaining the antenna, or from any negligence or intentional misconduct by Town, its subcontractors, agents, servants, or employees with respect to constructing, operating and/or maintaining the antenna. Gg) Waiver of Notice. Tenant expressly waives the service of any demand for payment of rent. (k) Acceptance of Premises and Disclaimer of Representations. The Tenant acknowledges that the Town has made no representations or warranties with respect to the condition of the Premises and Tenant further acknowledges that Tenant is fully familiar with the condition of the Premises and accepts the Premises in their present condition “AS IS, AND WITH ALL DEFECTS, LATENT OR PATENT”. 0) Compliance terms of RFP and Proposal. The terms and conditions of the RFP and the Tenants Proposal are hereby incorporated by reference and the Tenant shall comply with all such terms and conditions, along with the terms of this Lease. (m) Cooperation. Tenant shall be required to reasonably cooperate with all other Subtenants, if any, in all areas where cooperation is required in connection with the SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 7
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design, construction, site development, permitting, and operation of any facilities pursuant to this RFP. 8. Improvements (a) Development of Communications Facility. Tenant shall, at its sole cost and expense, design, permit, construct, install, maintain and remove the Communications Facility on the Premises in accordance with federal state and local requirements and the terms and conditions of this Lease. (b) — Tenant’s Obligations. Prior to commencing construction, Tenant shall provide the Town with the name of the contractor and subcontractors, if any, that will be constructing the improvements. Tenant shall utilize only licensed, qualified and insured contractors and subcontractors. All improvements shall be constructed at Tenant’s sole expense and in a workmanlike manner without the attachment of any liens to the Premises. All such construction shall be completed in compliance with all applicable laws, rules, ordinances and regulations. The requirements of this paragraph are in addition to, and do not take the place of, Tenant’s obligation to independently apply for and obtain any and all necessary building permits and other required licenses or permits to construct and operate the Communications Facility on the Premises. In the event that any damage to the Town’s property results from Tenant’s construction on, or use of, the Premises, the Town reserves the right to repair any such damage and to obtain reimbursement from Tenant directly for all costs incurred for such repair. (c) Permits and Approvals. The Town authorizes the Tenant to prepare, execute, and file all required applications for governmental permits and approvals for their respective obligations and uses under their Leases, subject to the approval of the Town. The Tenant shall be responsible for vigorously and diligently defending on its behalf (but not representing the Town) all governmental approvals granted for the Communications Facilities, including any approvals made by a board or commission of the Town, which are challenged by a third party in any administrative agency or court of law. All costs associated with applying for and obtaining all permits and approvals, and the defense thereof, as referenced in subparagraph (a) above, shall be borne by Tenant. Costs shall include attorney’s fees, building permits, legal costs and expenses, and consultant costs. (d) Intentionally deleted. (e) Transfer to Town. At the Town’s option, the Communications Facility, and all other improvements and structures constructed on the Premises by Lessee, shall become the property of the Town upon the natural expiration of the Lease or the termination of the Lease due to breach by Tenant of the Lease. In the event that the Lease is otherwise terminated prior to its expiration, Tenant agrees to allow the Town, if mutually agreeable, to purchase the Communications Facility, and all other structures constructed on the Premises by Tenant, from Tenant at Tenant’s actual cost, less depreciation. SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 8
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(f) Removal. If, upon the expiration or termination of the Lease, the Town decides not to acquire or purchase the Communications Facility as contemplated in the previous subsection, the Tenant shall dismantle and remove the Communications Facility and related structures constructed on the Premises by Tenant, including concrete footings, within sixty (60) days from the date of termination. Unless otherwise specified in writing by the Town, except with respect to the Communications Facility and related structures, equipment or personal property of Tenant, which are not removed from the Premises within sixty (60) days from the date of said written notice, shall become the property of the Town without further compensation due or owing to Tenant. (i) At the Town’s option, the Town may require Tenant, prior to commencing construction on the Premises or at the time Tenant gives notice of non-extension pursuant to Section 3(b), to post payment and performance bonds in an amount equal to one hundred percent (100%) of the estimated cost of removal of the Communications Facility on the Premises, in form and with a surety company reasonably acceptable to the Town. Notwithstanding the foregoing, the Tenant’s Initial Improvements shall not be required to be removed by the Tenant. 9. Costs and Expenses Associated with Premises (a) Tenant acknowledges that (i) the Town shall have no obligation or liability to pay any cost or expense with respect to the Premises, except as expressly provided for in this Lease; and (ii) Tenant shall be liable for all costs and expenses with respect to the Premises, except as expressly, otherwise, provided in this Lease. As provided below, the costs and expenses payable by Tenant shall include, without limitation, services, repairs, maintenance, insurance and taxes solely with respect to the Premises. (b) Tenant shall maintain, at its own expense, all necessary or desired services for the Premises, including, but not limited to electricity, communication services, janitorial services, and garbage disposal. The Town is not obligated to supply or maintain any service or equipment to the Premises, but is obligated to supply standard snow removal services. Tenant shall put, keep and maintain all portions of the Premises in a clean and orderly condition, free of dirt, rubbish, snow, ice and obstructions. (c) Tenant shall maintain and repair the Premises in a condition not less than the condition of the Premises existing as of the Commencement Date, normal wear and tear excepted. 10. Insurance (a) General. Tenant shall procure and maintain for the duration of this Lease insurance against claims for injury to persons or damage to property, which may arise from or in connection with this Lease by Tenant, Tenant’s agents, representatives, employees or contractors, subtenants or licensees. The insurance requirements herein are SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 9
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minimum requirements for this Lease and do not limit the indemnity covenants contained herein. (b) Required Coverages. Tenant and each subtenant and any contractor performing any construction services for Tenant/subtenant(s) at the Premises shall maintain the following insurance: (i) General comprehensive liability, with a commercial general liability endorsement, and with a minimum coverage amount of One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) aggregate limit. The policy shall provide blanket contractual liability insurance for all written contracts, and shall include coverage for products and completed operations liability, independent contractor’s liability, coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage. (ii) All-risk property damage insurance for replacement of the Wireless Facility and Tenant’s property. Said insurance shall include coverage for all natural disasters, including earthquakes, hurricanes, tornadoes and floods. (iii) | Automobile liability insurance for owned automobiles and trucks, non- owned automobiles and trucks, and/or rented automobiles and trucks, in the amount of (i) One Million Dollars ($1,000,000) for bodily injury and consequent death per occurrence, and Five Hundred Thousand Dollars ($500,000) for property damage per occurrence, or (ii) One Million Dollars ($1,000,000) combined single limit. (iv) | Workers Compensation in the minimum amount of the statutory limit. (c) Other Insurance Requirements. The policies shall contain, or be endorsed to contain, the following provisions: (i) The Town, its officers, officials, agents and employees shall be named as additional insureds with respect to liability arising out of the use and/or occupancy of the Premises subject to this Lease and activities performed by or on behalf of Tenant, including products and completed operations of Tenant; and automobiles owned, leased, hired or borrowed by Tenant. (ii) Tenant’s insurance shall contain broad form contractual liability coverage. (iii) | The Town shall be named as additional insured to the full limits of liability purchased by Tenant as required by this Lease. (iv) Tenant’s insurance coverage shall be primary insurance with respect to the Town, its officers, officials, employees and agents. Any insurance or self- SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 10
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insurance maintained by the Town, its officers, officials, agents and employees, shall be in excess to the coverage of Tenant’s insurance and shall not contribute to it. (v) Tenant’s insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer’s liability. (vi) Coverage provided by Tenant shall not be limited to the liability assumed under the indemnification provisions of this Lease. (vii) The policies shall contain a waiver of subrogation against the Town, its officers, officials, employees and agents for losses arising from Tenant’s operations, occupancy and use of the Premises subject to this Lease. In the event that the Town places an antenna on the Premises, Town’s policies shall contain a waiver of subrogation against Tenant, its officers, officials, employees and agents for losses arising from Town’s operations, occupancy or use of the Premises subject to this Lease. (d) | Town as Loss Payee. The Town shall be named as loss payee as its interests may appear. Tenant may carry any insurance required to be maintained under this Section 10 under a “blanket policy” covering other properties of Tenant. (e) Notice of Cancellation. Each insurance policy required by the insurance provisions of this Lease shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days’ prior written notice has been given to the Town. (f) Acceptability of Insurers. Tenant shall place insurance hereunder with insurers duly licensed or approved unlicensed companies in the Commonwealth of Massachusetts and with a “Best’s” rating of not less than A. (g) Verification of Coverage. Tenant shall furnish the Town with certificates of insurance (ACORD form) as required by this Lease. The certificates for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. Any policy endorsements that restrict or limit coverage shall be clearly noted on the certificate of insurance. The Town must receive and approve all certificates of insurance before Tenant takes possession of the Premises. Tenant’s failure to maintain the insurance policies as required by this Lease or to provide timely evidence of renewal will be considered a material breach of this Lease. A description of the Premises shall be noted on the certificates of insurance. The Town reserves the right to require complete, certified copies of all insurance policies and endorsements required by this Lease at any time. (h) Approval. Any modification or variation from the insurance requirements in this Lease must have the prior approval of the Town’s Risk Manager. Such action will not require a formal lease amendment but may be made by administrative action. SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 11
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(i) Policy Review and Adjustment. Such policies of insurance shall be subject to review and adjustment on the fifth (5th) anniversary of the Effective Date of this Lease, provided that the Lease is renewed, and on each subsequent fifth (5th) anniversary during any extended Term hereof in order to determine the adequacy of the insurance amounts in light of the then existing circumstances. Gj) Failure to Maintain Insurance. If Tenant fails or refuses to provide copies of the renewal insurance policies, together with evidence of payment of premiums therefor, or otherwise fails or refuses to procure or maintain insurance as required by this Lease, the Town shall have the right, at the Town’s election, and upon five (5) days’ notice to Tenant, to procure and maintain such insurance. Any premiums paid by the Town hereunder shall be due and payable by Tenant to the Town on the first day of the month following the date on which the premiums were paid. The Town shall give prompt notice of the payment of such premiums, stating the amounts paid and the name(s) of the insured(s). 11, Default (a) Default by Tenant. Tenant shall be in default under this Lease if any of the following occurs: (i) Tenant fails to pay when due any rental amount or other payment required to be paid by Tenant under this Lease in accordance with Section 5 hereof; (ii) Tenant fails to perform or observe any other covenant, agreement or condition which Tenant is required to perform or observe and such failure shall not be cured within thirty (30) days after delivery of written notice to Tenant of such failure, unless such failure cannot be cured within such 30 day period and, prior to the expiration of 30 days after receipt of notice, Tenant commences to eliminate such failure and proceeds diligently to cure the same; (iii) Tenant is named as a debtor in any voluntary or involuntary bankruptcy proceeding; (iv) substantially all of Tenant’s assets are placed in receivership or are subjected to attachment or other judiciary seizure; (v) Tenant makes or suffers a general assignment for the benefit of creditors; (vi) Tenant vacates or abandons the Premises; or (vii) Tenant breaches any other provision of this Lease. (b) Town’s Remedies. In the event of Tenant’s default hereunder, the Town shall have available the remedies set forth in this Section 11. Except as expressly, otherwise, provided in this Lease, and to the extent permitted by law, the Town’s remedies shall be cumulative and not alternative remedies. (i) Legal and Equitable Remedies. The Town shall have all remedies available at law or in equity. (ii) | Advances. In the event of any breach of this Lease by Tenant, which is not cured within the cure period set forth in Section 11(a), the Town may remedy such breach for the account of and at the expense of Tenant. SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 12
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12. (iii) Expenses. If the Town incurs any expense or costs including, without limitation at legal fees or expenses or is compelled to pay, or elects to pay, any sum of money or perform any act, which will require the payment of any sum of money, or is compelled to incur any expense, including reasonable attorneys’ fees, in instituting or processing any action or proceeding to enforce the Town’s rights under this Lease, the sum or sums so paid by the Town, with interest from the date of payment, shall be deemed to be additional rental and shall be due from Tenant to the Town on the first day of the month following the date on which Tenant receives notice thereof from Town. (c) Town’s Default. The Town shall be in default under this Lease if the Town fails to perform or observe any covenant, agreement or condition, which the Town is required to perform or observe and such failure is not cured within sixty (60) days after delivery of written notice to the Town of such failure, unless such failure cannot be cured within such sixty (60) day period and, prior to the expiration of such notice, the Town commences to eliminate such failure and proceeds diligently to cure the same. (d) Tenant’s Remedies. In the event of the Town’s default hereunder, Tenant shall have all remedies available at law or in equity Termination of Lease (a) General Events of Termination. The Lease shall terminate upon the occurrence of one or more of the following events: (i) By written agreement between the Town and Tenant; (ii) by the Town pursuant to this Section 11 of this Lease; (iii) upon expiration of the Term of the Lease; (iv) by reason of the condemnation of the Premises, as provided in Section 13(e); or (v) Lessee shall have the right to terminate this Agreement at any time during the Term or any subsequent Renewal Term thereafter, upon ninety (90) days written notice to Town of its intention not to renew, contemporaneous with an early termination penalty of the equivalent of twelve (12) months of the current rent in effect at the time of the termination. (b) Surrender of Possession. Upon termination of this Lease, Tenant shall surrender possession of the Premises to the Town within sixty (60) days of said termination, provided Tenant shall be responsible for payment of rent on the same terms as set forth in the Lease during such holdover period following termination. If Tenant does not surrender possession within sixty (60) days, the Town may re-enter and repossess the Premises and remove all persons or property using such force as may be necessary without being deemed guilty of, or liable for, any trespass, forcible entry, detainer or damage to persons or property. (c) Condition of Premises Upon Termination or Abandonment. Tenant, upon termination or abandonment of this Lease or termination of Tenant’s right of possession, covenants and agrees as follows: (i) Removal of Property. Removal of property on termination shail be SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 13
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13. as provided in Section 8. (ii) Restoration of the Premises. Tenant shall restore the Premises to the condition existing on the Effective Date, with the exception of ordinary wear and tear, and alterations, improvements and additions which the Town has not directed Tenant in writing to remove. (d) Holding Over. If Tenant remains in possession of the Premises after the expiration of the Term, whether for purposes of dismantling and removing the Communications Facility and related structures, or otherwise, the terms of the Lease shall continuc to apply to Tenant on a month-to-month basis not to exceed one hundred eighty (180) days from the date of the expiration of the Term; provided however that the rent for such period shall be at the rate of one hundred twenty percent (120%) of the monthly rent for the immediately preceding lease year. General Provisions (a) Notices. All notices or other communications under this Lease shall be in writing and shall be deemed to be delivered on the date of delivery if delivered in person or on the date of receipt indicated on the return receipt if delivered by U.S. Mail, certified or registered, return receipt requested, postage prepaid and addressed as follows: If to Town: Town of Canton Memorial Hall 601 Washington Street Canton, MA 02021 Attn: Town Administrator With a copy to: Paul R. DeRensis, Esq. Town Counsel Deutsch Williams One Design Center, Ste. 600 Boston, MA 02210 If to Tenant: MetroPCS Massachusetts, LLC 285 Billerica Road, 3“ Floor SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 14
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Chelmsford, MA 01824 Attn: General Manager Or to such other address as a party may provide to the other by written notice. (b) Successors and Assigns. This Lease shall inure to the benefit of and be binding upon the successors and permitted assigns of the Town and Tenant. (c) Assignment and Subletting. The Lease may be assigned or sublet by the Tenant but only upon written prior approval of the Town, which approval shall not be unreasonably withheld, to: (i) An entity that is licensed as may be required by the Federal Communications Commission to operate the Communications Facility and that is a parent, subsidiary or affiliate of the Tenant which controls, is controlled by, or is under common control with the Tenant or which is merged or consolidated with the Tenant, or (ii) — Another provider or operator, provided that the other provider or operator is deemed by the Town to be in sufficient financial condition and legal status and sufficiently qualified so as to be able to meet all the requirements of the Lease. The Tenant shall provide the Town with such information regarding the prospective assignee as the Town deems necessary for a review of said assignee’s financial, professional and legal status. No such permitted assignment or subletting shall relieve the Tenant from its liability to the Town hereunder. The Lease may not otherwise be sold, assigned, transferred or sublet without the prior written consent of the Town, which may be withheld in its sole discretion. (d) Nonwaiver of Remedies. A waiver of any condition expressed in this Lease shall not be implied by any failure of the Town or Tenant to enforce any remedy available by reason of the failure to observe or perform such condition. A waiver by the Town or Tenant shall not affect any condition other than the one specified in such waiver, and a waiver shall waive a special condition only for the time and in the manner specifically stated in the waiver. The acceptance by the Town of any rent or other money from the Tenant after termination of the Tenant’s right of possession, after the occurrence of a default by Tenant or after institution of any remedy by the Town shall not alter, diminish, affect or waive such lease termination, termination of possession, default or remedy. (e) Condemnation. If a condemning authority takes, or acquires by deed in lieu of condemnation, all or a portion of the Premises or the Easement, this Lease shall, at the option of Tenant, terminate as of the date the title vests in the condemning authority. The Town and Tenant shall share in the condemnation proceeds in proportion to the values of their respective interests in the Premises as provided by law. Should Tenant elect not to SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 15
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terminate this Lease, the rent due during the remainder of the Lease Term shall be reduced in proportion to the area taken, effective on the date physical possession is taken by the condemning authority. (f) Effect of Town’s Insurance on Tenant’s Obligations. From time to time and without obligation to do so, the Town may purchase insurance against damage or liability arising out of or related to the Premises. The purchase or failure to purchase such insurance shall not release or waive the obligations of the Town set forth in this Lease. Tenant waives all claims on insurance purchased by the Town. (g) Attorneys” Fees and Costs. If either party brings an action to enforce the terms of this Lease or declare rights hereunder, the prevailing party in such action, at trial or on appeal, shall be entitled to its reasonable attorneys’ fees and costs as may be determined by the court. (h) Governing Law, Jurisdiction and Forum. This Lease shall be construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts. The parties agree that the courts of Massachusetts shall have exclusive jurisdiction and that county in which the Town is located shall be the proper venue. qd) Estoppel Certificate. Each party agrees that, from time to time upon not less than forty-five (45) days’ prior written request by the requesting party, the non- requesting party will deliver to the requesting party a statement in writing certifying (i) that the Lease is unmodified and in full force and effect (or that the Lease as modified is in full force and effect, describing the modifications), (ii) that the rents and other charges have been paid to date without any prepayments or defaults (or if any prepayments or defaults, the nature of such prepayments or defaults) and (iii) that the requesting party is not in default under any provision of this Lease (or, if in default, the nature of the default). G) Relationship of the Parties. Nothing contained in this Lease shall be construed as creating the relationship of principal or agent or of partnership or joint venture. Neither the method of computation of rent nor any other provision of this Lease, nor any act of the parties, shall be deemed to create any relationship other than that of landlord or tenant. (k) Effect of Conveyance. If, during the term of this Lease, Town should sell its interest in the Premises, then from and after the effective date of such sale, the Town shall be released and discharged from any and all further obligations and responsibilities under this Lease (except those already accrued) upon written assumption by the buyer of the Town’s liabilities under this Lease. dd) Time of the Essence. Time is of the essence with respect to the obligations to be performed under this Lease. (m) Severability. The invalidity of any portion of this Lease, as determined by a SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 16
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court of competent jurisdiction, shall not affect the validity of any other portion of this Lease. [Signatures on following page. | SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 17
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IN WITNESS WHEREOEF, the Town and Tenant have executed this Lease effective the date first set forth above. TOWN: TOWN OF CANTON, MASSACHUSETTS William Friel, Town Administrator and Chief Procurement Officer TENANT: SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 18
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List of Attachments Exhibit A Description of Premises Exhibit B Rent DWLIBDB\231547.17604/00 SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 19
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EXHIBIT A Description of Premises SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 20
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EXHIBIT B Rent The annual amount of rent payable by the Tenant to the Town is as set forth below. The annual rent will be payable in twelve (12) equal monthly installments, each due in advance on the first day of each month. Year Annual Rent Monthly Payment 1 $37,200 $3,100.00 2 $38,316 $3,193.00 3 $39,465 $3,288.75 4 $40,649 $3,387.42 5 $41,869 $3,489.08 6 $43,125 $3,593.75 7 $44,419 $3,701.58 8 $45,751 $3,812.58 9 $47,124 $3,927.00 10 $48,538 $4,044.83 DWLIBDB\232702.38801/24 SITE ID: BOS0262A SITE NAME: CANTON FLAGPOLE RFP 21
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ocr-300dpi-psm3
Section 6: Lease Exhibit
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* LOCUS PLAN NOT TO SCALE: metroP CS. Unlimit Yourself. MetroPCS Wireless, Inc. 285 Billerica Rd Chelmsford, MA 01824 SITE NUMBER BOS0262A SITE NAME GTP FLAGPOLE CANTON SITE ADDRESS 2438 WASHINGTON ST CANTON, MA APPROVALS Site Owner Construction Manager v \TLANTIS REVISIONS ae 11/26/07 | PRELIMINARY RF Engineer Site Acquisition GROUP 15 Cypress St., Suite 300 Newton Centre, MA 02459 Office: 617-965-0789 Fox: 617-663-6032 SHEET NUMBER. LE-1 modifications they may impose. Tne above parties hereby approve and accept these documents and authorize the contractor to proceed with the construction described herein, all construction documents are subject to review by the local building department and any changes or
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pone TRUE WOODED (P) (12) 7/8 " COAX INSIDE (E) UNDERGROUND CONDUIT TO EQUIPMENT ROOM - (E) BUILDING (P) METRO PCS EQUIPMENT CABINETS INSIDE (E) 11° X 14° ROOM IN BASEMENT ~(E) GENERATOR — (6) 1CEERIDCE (E) EQUIPMENT BY OTHERS —~ IN BASEMENT WASHINGTON STREET \LE3] COMPOUND PLAN (P) (3) METRO PCS ANTENNAS INSIDE (E) FLAG POLE (E) BIT. CONC. PARKING LOT SCALE: 1” = 20’-0" SITE NUMBER APPROVALS BOS0262A metro? CS 0 se SS Uniimit Yourself. GTP FLAGPOLE Site Owner Date CANTON MetroPCS Wireless, Inc. [Sipapprnss Ts eee = 2438 WASHINGTON ST Construction Manager Date REVISIONS RF Engineer Date A_| 11/26/07 | PRELIMINARY —---— a Site Acquisition Date 285 Billerica Rd Chelmsford, MA 01824 | CANTON, MA REV | DATE v \TLANTIS GROUP 15 Cypress St., Suite 300 Newton Centre, MA 02459 Office: 617-965-0789 Fox: 617-663-6032 The above parties hereby approve and accept these documents | and authorize the contractor to proceed with the construction [ described herein, all construction documents are subject to SHEET NUMBER review by the local building department and any changes or LE-2 modifications they may impose.
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TOP FLAG POLE ELEV. 110'% AGL S
__RAD CENTER OF (P) (3) ANTENNAS
ELEV: 105'+ AGL
ELE 95'£ AGL
(P) (3) METRO PCS ANTENNAS
INSIDE {E) FLAG POLE
_
I} 42 CENTER OF (E) ANTENNAS 4
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(P) GPS ATTACHED TO —-.
ICEBRIDGE SUPPORT POST |
| eo BUILDING
| —(E) ICEBRIDCE
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(P) (12) 7/8 " COAX INSIDE (P) METRO PCS
(E) UNDERGROUND CONDUIT | EQUIPMENT CABINETS
TO EQUIPMENT ROOM | INSIDE (E) 11' X 14" ROOM
i IN BASEMENT
—— —
SENAY TPO
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EAST ELEVATION
SCALE: 1” = 20'-0"
SITE NUMBER APPROVALS
D BOS0262A
metro CS fas SONS
«| GTP FLAGPOLE ite Owner late
ae Yourself. CANTON
MetroPCS Wireless, Inc. [Sipappess OO ee
285 Billerica Rd 2438 WASHINGTON ST Construction Manager Date
Chelmsford, MA 01824 | CANTON, MA
REVISIONS RE. ‘Engineerras Date.
REV | DATE
A_| 11/26/07 [PRELIMINARY] —
v TLANTIS / Site Acquisition Date
G R re) U P The above parties hereby approve and accept these documents
P and authorize the contractor to proceed with the construction
foes Bt Peers described herein, all construction documents are subject to
Office: 617-965-0789 SHEET NUMBER review by the local building department and any changes or
Fox: 617-663-6032 LE-3 modifications they may impose.