HomeMy Public PortalAboutVerizonAlltel tower lease 12-8-09 •
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PENNINGTON LAW FIRM, L.L.P.
ATTORNEYS C COUNSELORS AT LAW
1501 MAIN STREET, SUITE 600 (29201)
POST OFFICE Box 2844
COLUMBIA, SOUTH CAROLINA 29202
TELEPHONE 803-929 -1070
TELECOPIER 803-929-1075
WWW.PENN LAW FIRM.COM
• December 8, 2009
VIA CERTIFIED MAIL
USPS TRACKING NO. • 7009 1680 0001 8569 2356
City of Tybee Island
Post Office Box 2749
Tybee Island, Georgia 31328
•
RE: WATER TOWER LEASE AGREEMENT BETWEEN THE CITY OF TYBEE
ISLAND AND VERIZON WIRELESS OF THE EAST, LP D /B /A VERIZON
WIRELESS (the "Agreement ")
ALLTEL SITE NAME: Tybee Island Z -A
VZW NG NO. 56741
(PC LAW No. : 3000 -013 / GAALBATCH4JUL0709)
To Whom It May Concern:
Please be advised that it is the intention of Verizon Wireless of the East, LP
d /b /a Verizon Wireless ( "Verizon Wireless ") to terminate the above - referenced
Agreement as of September 2, 2010 (the "Termination Date "). A copy of the
Agreement is attached for your reference.
Section Thirteen (13) of the Agreement allows Verizon Wireless to terminate
the Agreement upon the annual anniversary of the Agreement provided that it gives
three (3) months prior notice to the Lessor. In accordance with the terms of the
Agreement, Verizon Wireless is providing written notice of its intention to terminate
the Agreement on or before June 2, 2010.
December 8, 2009
Page 2 of 2
After the Termination Date, Verizon Wireless shall have no further obligations
under the Agreement, including, but not limited to, financial obligations.
Our records indicate that a Memorandum of Lease was recorded in regard to
the Agreement. I have attached hereto a Termination Agreement that is in
recordable form. If you wish for the Memorandum of Lease to be released, please
sign two (2) originals of the enclosed Termination Agreement, and have it properly
acknowledged, and return it to me in the envelope provided. Your failure to
execute the Termination Agreement will in no way impact the termination of the
Agreement. If you sign and return the Termination Agreement, we will return a
fully executed original to you so that you may attempt to record it in the proper
place.
If you have any questions or comments, or if you need additional
information, please do not hesitate to contact me.
Sincerely,
PENNI TON LAW 'IR► , LLP
Gary C. Pe `ngt•n
Enclosure
Cc: Ms. Bernadette Faiella (via email)
Ms. Donna Atkinson (via email)
TYBEE ISLAND Z -A
VZW NG. NO., 56741
GCP /DECEMBER 8, 2009
Upon Recording, Return to:
Pennington Law Firm, L.L.P.
Post Office Box 2844
Columbia, South Carolina 29202
STATE OF GEORGIA
COUNTY OF CHATHAM
TERMINATION AND RELEASE OF MEMORANDUM
THIS TERMINATION AGREEMENT AND RELEASE OF MEMORANDUM
( "Agreement ") is made and entered into this _ day of , 200 by and
between THE CITY OF TYBEE ISLAND ( "Lessor ") and VERIZON WIRELESS OF THE
EAST, LP D /B /A VERIZON WIRELESS ( "Lessee ").
WITNESSETH:
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WHEREAS, Lessor and Lessee, or their predecessors in interest, entered into that
certain Water Tower Lease Agreement dated September 2, 2003 (the "Lease "), as may
have been amended from to time, for certain leased premises located at Van Horn
Street, Tybee Island, Georgia, with Lessee Site ID: Tybee Island Z -A /VZW 56741, all as
more particularly defined in the Lease;
WHEREAS, that real property subject of the Lease is described and /or shown in
Exhibit A attached hereto and incorporated herein;
WHEREAS, Lessor and Lessee desire that the contractual relations as set forth in
the Lease be terminated along with all obligations, conditions, and covenants contained
therein as of the Termination Date (as defined below); and
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements thereinafter set forth, the parties hereby agree as follows:
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TYBEE ISLAND Z -A
VZW NG. NO. 56741
GCP /DECEMBER 8, 2009
1. The above recitals are incorporated herein by reference. Except as
expressly set forth in this Agreement, all defined terms herein used shall have the same
meaning as set forth in the Lease.
2. As of September 2, 2010 (the "Termination Date "), Lessor and Lessee
hereby agree that the Lease shall be mutually terminated. To the extent that Lessee
recorded a Memorandum of Lease or some other form of record to give notice of the
Lease, the recording of this Termination Agreement shall act to discharge the applicable
recorded document.
3. Lessor and Lessee, each on behalf of itself and its predecessors,
successors, parents, subsidiaries, affiliates, employees, officers, agents, lawyers, heirs,
beneficiaries, representatives, and assigns, hereby releases, discharges, and promises
not to pursue legal action against the other party and /or its predecessors, successors,
parents, subsidiaries, affiliates, employees, officers, agents, lawyers, heirs, beneficiaries,
representatives, and assigns on all rights, claims, lawsuits, charges, and actions,
whether known or unknown, that the releasing party may have against the other party
arising from or related to the subject of this Agreement.
4. As of the Termination Date, Lessor and Lessee shall be relieved of any
further obligation owed to the other party under the Lease. In the event of a
discrepancy between this Agreement and the Lease, the terms of this Agreement shall
control.
5. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, and all counterparts shall constitute one and the same
instrument. •
[REST OF PAGE INTENTIONALLY BLANK]
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TYBEE ISLAND Z -A
VZW NG. NO. 56741
GCP /DECEMBER 8, 2009
IN WITNESS WHEREOF, Lessor and Lessee have each executed this Termination
Agreement on the dates set forth below.
WITNESSES: LESSOR:
CITY OF TYBEE ISLAND
Name Printed By:
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Name:
Title:
Dated:
Name Printed •
WITNESSES: LESSEE:
ai6
VERIZON WIRELESS OF THE EAST LP
D /B /A/ VERIZON WIRELESS
Name Printed
By Verizon Wireless of Georgia, LLC, Its
General Partner
By Cellco Partnership, Its Sole Member
Name Printed
By:
Name: Michael Haberman
Title: Executive Director - Network
Dated:
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�y;
TYBEE ISLAND Z -A
VZW NG. NO. 56741
GCP /DECEMBER 8, 2009
STATE OF GEORGIA
ACKNOWLEDGMENT
COUNTY OF CHATHAM
I, , a Notary Public for said County and State, do hereby
certify that personally came before me this day and acknowledged
that he /she is the of the CITY OF TYBEE ISLAND, and being
authorized to do so, executed the foregoing TERMINATION AND RELEASE OF
MEMORANDUM AGREEMENT as his /her own act and deed on behalf of the CITY OF
TYBEE ISLAND.
WITNESS my hand and official Notarial Seal, this day of , 200_.
Notary Public
My Commission Expires:
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lr,�Ji71(�
TYBEE ISLAND Z -A
VZW NG. NO. 56741
GCP /DECEMBER 8, 2009
STATE OF NEW JERSEY
ACKNOWLEDGMENT
COUNTY OF SOMERSET
I, Bernadette Faiella, a Notary Public for said County and State, do hereby certify
that Michael Haberman personally came before me this day and acknowledged that he is
the Executive Director - Network, of Cellco Partnership, Sole Member of Verizon
Wireless of Georgia, LLC, General Partner of Verizon Wireless of the East, L.P. and that
he, as Executive Director - Network, being authorized to do so, executed the foregoing
TERMINATION AND RELEASE OF MEMORANDUM AGREEMENT on behalf of VERIZON
WIRELESS OF THE EAST, LP D /B /A VERIZON WIRELESS.
WITNESS my hand and official Notarial Seal, this day of , 200_.
Notary Public
My Commission Expires:
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j
TYBEE ISLAND Z -A
VZW NG. NO. 56741
GCP /DECEMBER 8, 2009
EXHIBIT A
DESCRIPTION /SURVEY OF PROPERTY
See Attached
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Site Name: Tybee Island
Site ID: 1303
Exhibit "A -1"
(Property Description)
Attached to and made a part of that certain Water Tower Lease Agreement
dated , 2003 between the City of Tybee Island ( "Lessor ") and Verizon
Wireless of the East, L.P. d/b /a Verizon Wireless ( "Lessee ").
BEGINNING at a point shown as point 'A' on an exhibit prepared by HUSSEY,
GAY, BELL & DEYOUNG, INC., titled "Exhibit 'B', Proposed Lease Area from the
City of Tybee Island by GTE Mobilnet of the Southeast and Cellular One of
Savannah ", dated April 3, 1992, said point being an iron pipe set on the interior of
lands -belonging now or formerly to the City of Tybee Island, Chatham County,
Property Identification Number 4 -21 -05 -002, from whence the center support of the
elevated storage tank bears South 45 degrees 13 minutes 06 seconds West for a
distance of 24.99 feet from Point 'A' also from whence the northernmost support for
the elevated storage tank bears North 63 degrees 26 minutes 18 seconds West for a
distance of 10.60 feet from Point 'A'.
Thence; continuing across the lands belonging now or formerly to the City of
Tybee Island South 65 degrees 06 minutes 16 seconds West for a distance of 25.78 feet
to an iron pipe set.
Thence; continuing across the lands belonging now or formerly to the City of
Tybee Island North 69 degrees 53 minutes 44 seconds West for a distance of 27.18 feet
to an iron pipe set.
Thence; continuing across the lands belonging now or formerly to the City of
Tybee Island North 24 degrees 53 minutes 44 seconds West for a distance of 27.70 feet
to an iron pipe set.
Thence; continuing across the lands belonging now or formerly to the City of
Tybee Island North 65 degrees 06 minutes 16 seconds East for a distance of 45.00 feet
to an iron pipe set.
Thence; continuing across the lands belonging now or formerly to the City of
Tybee Island South 24 degrees 53 minutes 44 seconds East for a distance of 47.00 feet
to the point of beginning containing 0.04 acres, more or less.
Said parcel described herein is more clearly shown on an exhibit prepared by
HUSSEY, GAY, BELL & DEYOUNG, INC., titled "Exhibit 'B', Proposed Lease Area
from the City of Tybee Island by GTE Mobilnet of the Southeast and Cellular One of
Savannah ", dated April 3, 1992.
Site Name: Ty bee Island
Site ID: 1303
Exhibit "A -2"
(Legal Description)
UTILITY AND ACCESS EASEMENT, TYBEE ISLAND, GEORGIA
All that certain lot, tract or parcel of land situate, lying and being in the 5th
G.M. District in the City of Tybee Island, Chatham County, Georgia, being a portion
of Block 42, Fort Screven Ward as shown on a plat and recorded in Plat Book CC,
Page 263, dated June 22, 1979, in the Office of the Clerk of Court, Chatham County
Courthouse, being that tract of land more particularly described as follows:
Commencing at the intersection of the western right -of-
way line of Van Horn Street and the northern right -of -way
line of Fort Avenue being marked by an iron pipe;
continuing thence along the northern right -of -way line of
Fort Avenue S 60° 39' 39" W a distance of 152.03 feet to a
point being known as the point of beginning for the utility
and access easement; thence along the Fort Avenue right -
of -way line S 60° 39' 39" W a distance of 20.03 feet; thence
N 32° 32' 00" W a distance of 34.52 feet to a point; thence N
57° 28' 00" E a distance of 20.00 feet to a point; thence S
32° 32' 00" E a distance of 35.63 feet to a point on the
northern right -of -way line of Fort Avenue being described
above as the point of beginning, said utility and access
easement containing 0.016 acres.
The said tract as a whole is bounded as follows: On the North by the lease area
from the City of Tybee Island, on the East and West by the City of Tybee Island, on
the South by Fort Avenue.
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Site Name: Tybee Island
Site ID: 1303
WATER TOWER LEASE AGREEMENT
This Agreement, made this 2- day of Z.FitailLA,_, 2003, between the City
of Tybee Island with its principal mailing address off P.O. Box 128, Tybee Island,
Georgia 31328, hereinafter designated LESSOR and Verizon Wireless of the East,
L.P., a Delaware limited partnership, d/b /a Verizon Wireless, by Verizon Wireless of
Georgia, LLC, its general partner, by Cella) Partnership, a Delaware general
partnership, its sole member, with its principal offices at 180 Washington Valley
Road, Bedminster, New Jersey 07921, hereinafter designated LESSEE. The
LESSOR and LESSEE are at times collectively referred to hereinafter as the
"Parties" or individually as the "Party."
WITNESSETH:
In consideration of the mutual covenants contained herein and intending to be
legally bound hereby, the Parties hereto agree as follows:
1. PREMISES. LESSOR hereby leases to LESSEE a portion of that
certain space on the LESSOR's Water Tower ( "Tower "), located in the City of Tybee
island, Chatham County, State of Georgia, and said tower being located at Latitude
32 01 19 and Longitude 80 50 59 and more clearly described on Exhibit "A -1"
attached hereto (the entirety of LESSOR's property is referred to hereinafter as the
"Property "), together with a parcel of and for the installation of LESSEE's
equipment building as shown on Exhibit "B," attached hereto and made a part hereof
together with the non - exclusive right for ingress and egress, seven (7) days a week,
twenty -four (24) hours a day, on foot or motor vehicle, including trucks, and for the
installation and maintenance of utility wires, poles, cables, conduits, and pipes over,
under, or along a foot wide right -of -way extending from the nearest public
right -of -way to the demised premises, said demised premises and right -of -way for
access being substantially as described herein in Exhibit "A -2" and attached hereto
and made a part hereof which tower space, demised premises and right -of -way are
collectively referred to hereinafter as the "Premises."
In the event any public utility is unable to use the aforementioned
right -of -way, the LESSOR hereby agrees to grant an additional right -of -way either to
the LESSEE or to the public utility at no cost to the LESSEE.
LESSOR hereby grants permission to LESSEE to install, maintain and
operate the radio communications equipment, antennas and appurtenances described
in Exhibit "C" attached hereto.
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Site Name: Tybee Island
Site ID: 1303
LESSEE reserves the right to replace the aforementioned equipment with
similar and comparable equipment provided said replacement does not increase
tower loading of said Tower, limited to the specifications in Exhibit "B" attached
hereto.
2. SURVEY. LESSOR also hereby grants to LESSEE the right to survey
the Property and Premises, and said survey shall then become Exhibit "D" which
shall be attached hereto and made a part hereof, and shall control in the event of
boundary and access discrepancies between it and Exhibit "B." Cost for such work
shall be borne by the LESSEE.
_3. TERM. This Agreement shall be effective as of the date of execution by
both parties provided, however, the initial term shall be for five (5) years and shall
commence on the Commencement Date (as hereinafter defined) at which time rental
payments will be due at an annual rental of Twenty -Two Thousand Eight Hundred
Dollars ($22,800.00) to be paid in equal monthly installments of One Thousand Nine
Hundred Dollars ($1,900.00) each on the first day of the month, in advance, to
LESSOR or to such other person, firm or place as the LESSOR may, from time to
time, designate in writing at least thirty (30) days in advance of any rental payment
date. The Commencement Date is defined as the first (1st) day of the month
ii the this Agreement 1.,..3 L._. the rl'LL,. ,.1 rental
following the date this Agreement is executed by 4he parties. The annual ren4a1
amount shall increase annually by five percent (5 %) upon each anniversary of the
Commencement Date.
4. EXTENSIONS. This Agreement shall automatically be extended for
four (4) additional five (5) year terms unless the LESSEE terminates it at the end of
the then current tel in by giving the LESSOR written notice of the intent to terminate
at least six (6) months prior to the end of the then current term.
5. ADDITIONAL EXTENSIONS. If, at the end of the fourth (4th) five (5)
year extension term, this Agreement has not been terminated by either Party by
giving to the other written notice of an intention to terminate it at least six (6)
months prior to the end of such term, this Agreement shall continue in force upon the
same covenants, terms and conditions for a further term of five (5) years and for five
(5) year terms thereafter until terminated by either Party by giving to the other
written notice of its intention to so terminate at least six (6) months prior to the end
of such term.
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Site Name: Tybee Island
Site ID: 1303
6. USE GOVERNMENTAL APPROVALS. LESSEE shall use the
Premises for the purpose of constructing, maintaining and operating a
communications facility and uses incidental and all necessary appurtenances. A
security fence consisting of chain link construction or similar but comparable
construction may be placed around the perimeter of the Premises at the discretion of
LESSEE (not including the access easement). All improvements shall be at
LESSEE's expense and the installation of all improvements shall be at the discretion
and option of the LESSEE. LESSEE shall have the right to replace, repair, add or
otherwise modify its equipment or any portion thereof, whether the equipment is
specified or not on any exhibit attached hereto, during the term of this Agreement.
LESSEE will maintain the Premises in a good condition reasonable wear and tear
excepted. LESSOR will maintain the Property, excluding the Premises, in good
condition, reasonable wear and tear excepted. It is understood and agreed that
LESSEE's ability to use the Property is contingent upon its obtaining after the
execution date of this Agreement all of the certificates, pennits and other approvals
(collectively the "Governmental Approvals ") that may be required by any Federal,
State or Local authorities as well as satisfactory soil boring tests which will permit
LESSEE use of the Premises as set forth above. LESSOR shall cooperate with
LESSEE in its effort to obtain such approvals and shall take no action which would
adversely affect the status of the Property with respect to the proposed use by
LESSEE. In the event that any of such applications for such Governmental
Approvals should be finally rejected or LESSEE determines that such Governmental
Approvals may not be obtained in a timely manner or any Governmental Approval
issued to LESSEE is canceled, expires, lapses, or is otherwise withdrawn or
terminated by governmental authority or soil boring tests are found to be
unsatisfactory so that LESSEE in its sole discretion will be unable to use the
Premises for its intended purposes, LESSEE shall have the right to terminate this
Agreement. Notice of the LESSEE's exercise of its right to terminate shall be given
to LESSOR in writing by certified mail, return receipt requested, and shall be
effective upon the mailing of such notice by the LESSEE. All rentals paid to
LESSOR prior to said termination date shall be retained by the LESSOR. Upon such
termination, this Agreement shall become null and void and all the Parties shall have
no further obligations including the payment of money, to each other.
7. ACCESS TO TOWER. LESSOR agrees the LESSEE shall have free
access to the Tower at all times for the purpose of installing and maintaining the said
equipment. LESSOR shall furnish LESSEE with necessary means of access for the
purpose of ingress and egress to this site and Tower location. It is agreed, however,
that only authorized engineers, employees or properly authorized contractors of
LESSEE or persons under their direct supervision will be permitted to enter said
premises.
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1
Site Name: Tybee Island
Site ID: 1303
8. TOWER COMPLIANCE. LESSOR covenants that it will keep the
Tower in good repair as required by all federal, state, county and local laws. The
LESSOR shall also comply with all rules and regulations enforced by the Federal
Communications Commission with regard to the lighting, marking and painting of
towers. If the Tower is damaged for any reason so as to render it substantially
unusable for LESSEE'S use, rent shall abate for such period as the Tower is
substantially unusable for LESSEE'S use. If LESSOR, at its expense, (i) fails to
repair or restore the Tower within twenty (20) days, or (ii) if repair within twenty (20)
days is unreasonable, fails to initiate steps to repair the Tower within twenty (20)
days, Lessee may terminate this Agreement and all obligations for rental shall cease.
_No materials may be used in the installation of the antennas or transmission
lines that will cause corrosion or rust or deterioration of the Tower structure or its
appurtenances.
All antenna(s) on the Tower must be identified by a marking fastened securely
to its bracket on the Tower and all transmission lines are to be tagged at the conduit
opening where it enters any user's equipment space.
LESSEE agrees to reimburse LESSOR for any and all reasonable expenses
incurred by LESSOR and attributable to the increased cost of tower maintenance and
upkeep as a result of the placement and operation of LESSEE's facilities located on
the City's water tank and for any increased costs to the City as a result of any
modification to LESSEE's facilities.
9. INTERFERENCE. LESSEE agrees to have installed radio equipment
of the type and frequency which will not cause measurable interference to the
equipment existing as of the date this Agreement is executed by the Parties of the
LESSOR or other lessees of the Property . In the event LESSEE's equipment causes
such interference, and after LESSOR has notified LESSEE of such interference,
LESSEE will take all steps necessary to correct and eliminate the interference.
Except for LESSOR'S public safety transmission equipment which shall have
superior rights over all other users including LESSEE, LESSOR agrees that
LESSOR and/or any other tenants of the Property who currently have or in the
future take possession of the Property will be permitted to install only such radio
equipment that is of the type and frequency which will not cause measurable
interference to the existing equipment of the LESSEE. The Parties acknowledge that
there will not be an adequate remedy at law for non - compliance with the provisions of
this paragraph and therefore, either Party shall have the right to specifically enforce
the provisions of this paragraph in a court of competent jurisdiction.
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Site Name: Tybee Island
Site ID: 1303
10. LESSEE COMPLIANCE. All installations and operation in connection
with this Agreement by LESSEE shall meet with all applicable Rules and
Regulations of the Federal Communications Commission, Federal Aviation Agency
and all applicable codes and regulations of the township, county and state concerned.
Under this Agreement, the LESSOR assumes no responsibility for the licensing,
operation, and/or maintenance of LESSEE's radio equipment.
11. INDEMNIFICATION. LESSEE shall indemnify, protect, save and hold
harmless LESSOR and the directors, officers, employees and agents, LESSOR from
and against any claims, demands, judgments, set -offs, losses, damages, liabilities,
awards, fines and expenses, including without limitation, the contributing negligence
of the.LESSEE, and any attorneys' fees, expenses or other costs associated with or
incurred, based on or in any manner arising out of or relating to the performance or
non- performance of this agreement by the LESSEE hereunder, including but not
limited to the injury to persons or property, actual damages, losses, set -offs, warranty
claims, product liability claims or other damages arising out of any action for strict
liability in tort; provided, however, that nothing contained in this provision shall be
interpreted to indemnify or hold harmless LESSOR against liability for damages
arising out of bodily injury to persons or damage to property caused by or resulting
from the sole negligence or willful misconduct of LESSOR, and LESSOR shall
indemnify, protect, save and hold harmless LESSEE and the directors, officers,
employees and agents of LESSEE against liability for damages arising out of bodily
injury to persons or damage to property caused by or resulting from the negligence or
willful misconduct of LESSOR.
12. INSURANCE. The Parties hereby waive any and all rights of action for
negligence against the other which may hereafter arise on account of damage to the
premises or to property, resulting from any fire, or other casualty of the kind covered
by standard fire insurance policies with extended coverage, regardless of whether or
not, or in what amounts, such insurance is now or hereafter carried by the Parties, or
either of them. LESSEE agrees that it will, at its own cost and expense, purchase
and maintain in full force and effect throughout the term of this Lease, including
any renewals or extensions thereof, public liability and property damage policies
which provide a combined single limit of $1,000,000. LESSEE's policy or policies
will name LESSOR as additional insured.
13. ANNUAL TERMINATION. Notwithstanding anything to the contrary
contained herein, provided LESSEE is not in default hereunder and shall have paid
all rents and sums due and payable to the LESSOR by LESSEE, LESSEE shall have
the right to terminate this Agreement upon the annual anniversary of this
Agreement provided that three (3) months prior notice is given the LESSOR.
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Site Name: Tybee Island
Site ID: 1303
14. REMOVAL UPON TERMINATION. LESSEE, upon termination of the
Agreement, shall, within ninety (90) days, remove its building(s), antenna
structure(s) (except footings), fixtures and all personal property and otherwise restore
the Property to its original condition, reasonable wear and tear excepted. LESSOR
agrees and acknowledges that all of the equipment, fixtures and personal property of
the LESSEE shall remain the personal property of the LESSEE and the LESSEE
shall have the right to remove the same, whether or not said items are considered
fixtures and attachments to real property under applicable law. If such time for
removal causes LESSEE to remain on the Premises after termination of this
Agreement, LESSEE shall pay rent at the then existing monthly rate or on the
existing monthly pro -rata basis if based upon a longer payment term, until such time
as the removal of the building, antenna structure, fixtures and all personal property
are completed.
15. RIGHTS UPON SALE. Should the LESSOR, at any time during the
term of this Agreement, decide to sell all or any part of the Property to a purchaser
other than LESSEE, such sale shall be under and subject to this Agreement and
LESSEE's rights hereunder, and any sale by the LESSOR of the portion of this
property underlying the right -of -way herein granted shall be under and subject to the
right of the LESSEE in and to such right -of -way.
16. QUIET ENJOYMENT. LESSOR covenants that LESSEE, on paying
the rent and performing the covenants shall peaceably and quietly have, hold and
enjoy the Premises.
17. TITLE. LESSOR covenants that LESSOR is seized of good and
sufficient title and interest to the Property and has full authority to enter into and
execute this Agreement. LESSOR further covenants that there are no other liens,
judgments or impediments of title on the Property, or affecting LESSOR's title to the
same, and that there are no covenants, easements or restrictions which prevent the
use of the Premises by the LESSEE as set forth above.
18. INTEGRATION. It is agreed and understood that this Agreement
contains all agreements, promises and understandings between the LESSOR and
LESSEE and that no verbal or oral agreements, promises or understandings shall be
binding upon either the LESSOR or LESSEE in any dispute, controversy or
proceeding at law, and any addition, variation or modification to this Agreement shall
be void and ineffective unless made in writing signed by the Parties. In the event any
provision of the Agreement is found to be invalid or unenforceable, such finding shall
not effect the validity and enforceability of the remaining provisions of this
Agreement. The failure of either Party to insist upon strict performance of any of the
terms or conditions of this Agreement or to exercise any of its rights under the
Agreement shall not waive such rights and such Party shall have the right to enforce
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Site Name: Tybee Island
Site ID: 1303
such rights at any time and take such action as may be lawful and authorized under
this Agreement, either in law or in equity.
19. GOVERNING LAW. This Agreement and the performance thereof shall
be governed, interpreted, construed and regulated by the laws of the State in which
the Property is located.
20. ASSIGNMENT. This Agreement may be sold, assigned or transferred
by the LESSEE without any approval or consent of the LESSOR to the LESSEE's
principal, affiliates, subsidiaries of its principal or to any entity which acquires all or
substantially all of LESSEE's assets in the market defined by the Federal.
Communications Commission in which the Property is located by reason of a merger,
acquisition or other business reorganization. As to other parties, this Agreement may
not be sold, assigned or transferred without the written consent of the LESSOR,
which such consent will not be unreasonably withheld or delayed.
21. NOTICES. All notices hereunder must be in writing and shall be
deemed validly given if sent by certified mail, return receipt requested or by
commercial courier, provided the courier's regular business is delivery service and
provided further that it guarantees delivery to the addressee by the end of the next
business day following the courier's receipt from the sender, addressed as follows (or
any other address that the Party to be notified may have designated to the sender by
like notice):
LESSOR: City of Tybee Island
P.O. Box 128
Tybee Island, GA 31328
LESSEE: Verizon Wireless of the East, L.P.
d/b /a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Notice shall be effective upon mailing or delivering the same to a commercial
courier, as permitted above.
22. SUCCESSORS. This Agreement shall extend to and bind the heirs,
personal representatives, successors and assigns of the Parties hereto.
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Site Name: Tybee Island
Site ID: 1303
23. SUBORDINATION AND NON- DISTURBANCE. At LESSOR's option,
this Agreement shall be subordinate to any mortgage or other security interest by
LESSOR which from time to time may encumber all or part of the Property or
right-of-way; provided, however, every such mortgage or other security interest shall
recognize the validity of this Agreement in the event of a foreclosure of LESSOR's
interest and also LESSEE's right to remain in occupancy of and have access to the
Premises as long as LESSEE is not in default of this Agreement. LESSEE shall
execute whatever instruments may reasonably be required to evidence this
subordination clause. In the event the Property is encumbered by a mortgage or
other security interest, the LESSOR immediately after this agreement is executed,
will obtain and furnish to LESSEE, a non - disturbance agreement for each such
mortgage or other security interest in recordable form. In the event the LESSOR
defaults in the payment and/or other performance of any mortgage or other security
interest encumbering the Property, LESSEE, may, at its sole option and without
obligation, cure or correct LESSOR's default and upon doing so, LESSEE shall be
subrogated to any and all rights, titles, liens and equities of the holders of such
mortgage or security interest and the LESSEE shall be entitled to deduct and setoff
against all rents that may otherwise become due under this Agreement the sums
paid by LESSEE to cure or correct such defaults.
!1 RECORDING. D ��T7. T!'1 T T S �vt P 7� to 77 �� 1T .l f this G'*. I . 1.7. LrG�7S Vll agreed W execute LC a 1Ylemor anuum of �ll'1� Lea Se
Agreement which LESSEE may record with the appropriate Recording Officer. The
date set forth in the Memorandum of Lease is for recording purposes only and bears
no reference to commencement of either term or rent payments.
25. DEFAULT. In the event there is a default by the LESSEE with respect
to any of the provisions of this Agreement or its obligations under it, including the
payment of rent, the LESSOR shall 'give LESSEE written notice of such default.
After receipt of such written notice, the LESSEE shall have fifteen (15) days in which
to cure any monetary default and thirty (30) days in which to cure any non - monetary
default, provided the LESSEE shall have such extended period as may be required
beyond the thirty (30) days if the nature of the cure is such that it reasonably
requires more than thirty (30) days and the LESSEE commences the cure within the
thirty (30) day period and thereafter continuously and diligently pursues the cure to
completion. The LESSOR may not maintain any action or effect any remedies for
default against the LESSEE unless and until the LESSEE has failed to cure the
same within the time periods provided in this paragraph.
8
Site Name: Tybee Island
Site ID: 1303
26. ENVIRONMENTAL.
a. LESSOR will be responsible for all obligations of compliance
with any and all environmental and industrial hygiene laws, including any
regulations, guidelines, standards, or policies of any governmental authorities
regulating or imposing standards of liability or standards of conduct with regard to
any environmental or industrial hygiene conditions or concerns as may now or at
any time hereafter be in effect, that are or were in any way related to activity now
conducted in, on, or in any way related to the Property, unless such conditions or
concerns are caused by the activities of the LESSEE.
b. LESSOR shall hold LESSEE harmless and indemnify the
LESSEE from and assume all duties, responsibility and liability at LESSOR's sole
cost and expense, for all duties, responsibilities, and liability (for payment of
penalties, sanctions, forfeitures, losses, costs, or damages) and for responding to any
action, notice, claim, order, summons, citation, directive, litigation, investigation or
proceeding which is in any way related to: a) failure to comply with any
environmental or industrial hygiene law, including without limitation any
regulations, guidelines, standards, or policies of any governmental authorities
regulating or imposing standards of liability or standards of conduct with regard to
any environmental or industrial hygiene concerns or conditions as may now or at
any time hereafter be in effect, unless such compliance results from conditions
caused by the LESSEE; and b) any environmental or industrial hygiene conditions
arising out of or in any way related to the condition of the Property or activities
conducted thereon, unless such environmental conditions are caused by the
LESSEE. Any indemnification provided by LESSOR under this Section 26 shall
exclude claims that are caused by LESSEE'S structures located on the Property.
27. CASUALTY. In the event of damage by fire or other casualty to the
Premises that cannot reasonably be expected to be repaired within forty -five (45)
days following same or, if the Property is damaged by fire or other casualty so that
such damage may reasonably be expected to disrupt LESSEE's operations at the
Premises for more than forty -five (45) days, then LESSEE may at any time following
such fire or other casualty, provided LESSOR has not completed the restoration
required to permit LESSEE to resume its operation at the Premises, terminate this
Lease upon fifteen (15) days written notice to LESSOR. Any such notice of
termination shall cause this Lease to expire with the same force and effect as though
the date set forth in such notice were the date originally set as the expiration date of
this Lease and the parties shall make an appropriate adjustment, as of such
termination date, with respect to payments due to the other under this Lease.
Notwithstanding the foregoing, all rental shall abate during the period of such fire or
other casualty.
9
Site Name: Tybee Island
Site ID: 1303
28. CONDEMNATION. In the event of any condemnation of the Property,
LESSEE may terminate this Lease upon fifteen (15) days' written notice to LESSOR
if such condemnation may reasonably be expected to disrupt LESSEE's operations at
the Premises for more than forty -five (45) days. LESSEE may on its own behalf
make a claim in any condemnation proceeding involving the Premises for losses
related to the antennas, equipment, its relocation costs and its damages and losses
(but not for the loss of its leasehold interest). Any such notice of termination shall
cause this Lease to expire with the same force and effect as though the date set forth
in such notice were the date originally set as the expiration date of this Lease and the
parties shall make an appropriate adjustment as of such termination date with
respect to payments due to the other under this Lease.
29. SUBMISSION OF LEASE. The submission of this Lease for
examination does not constitute an offer to lease the Premises and this Lease
becomes effective only upon the full execution of this. Lease by the Parties. If any
provision herein is invalid, it shall be considered deleted from this Lease and shall
not invalidate the remaining provisions of this Lease. Each of' the Parties hereto
warrants to the other that the person or persons executing this Lease on behalf of
such party has the full right, power and authority to enter into and execute this
Lease on such Party's behalf and that no consent from any other person or entity is
necessary as a condition precedent to the legal effect of this Lease.
30. APPLICABLE LAWS. LESSEE shall use the Premises as may be
required or as permitted by applicable laws, rules and regulations. LESSOR agrees
to keep the Property in conformance with. all applicable, laws, rules and regulations
and agrees to reasonably cooperate with the LESSEE regarding any compliance
required by the LESSEE in respect to its use of the Premises.
31. SURVIVAL. The provisions of the Agreement relating to
indemnification from one Party to the other Party shall survive any termination or
expiration of this Agreement. Additionally, any provisions of this Agreement which
require performance subsequent to the termination or expiration of this Agreement
shall also survive such termination or expiration.
32. CAPTIONS. The captions contained in this Agreement are inserted for
convenience only and are not intended to be part of the Agreement. They shall not
affect or be utilized in the construction or interpretation of the Agreement.
ISIGNATIJRES APPEAR ON NEXT PAGE]
10
Site Name: Tybee Island
Site ID: 1303
IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed
their irrespective seals the day and year first above written.
Signed, sealed and LESSOR: CITY OF TYBEE ISLAND
delivered in the presence of:
'' BY 40C' .4400
Unofficial Witness NAME: . • ` _ .
w(M TITLE: l'Y1 A y n
Print Name DATE: * i � (D - oz._
Al
Notary Public
My commission expires: U g 2O
(NOTARY SEAL)
Signed, sealed and LESSEE: VERIZON WIRELESS OF THE EAST,
delivered in the presence of: L.P., a Delaware limited partnership
d/b /a Verizon Wireless
Unofficial Witness BY: Verizon Wireless of Georgia,
ATarsf LLC, its General Partner
Print Name
BY: Cellco Partnership,
a Delaware general partnership,
its Sole Member
Notary Public BY:
NAME: Howard H. Bower
My commission expires: 1 /41 TITLE: Area Vice President -
Network, South Area
(NOTARY SEAL) DATE: 7 / _/cJ
NOTARY PUBLIC
STATE OF NORTH CAROLINA
CABARRUS COUNTY
CATHARINE LAWSON
MY COMMISSION EXPIRES
JANUARY 4, 2005
11
Site Name: Tybee Island
Site ID: 1303
Exhibit "A -1"
(Property Description)
Attached to and made a part of that certain Water Tower Lease Agreement
dated , 2003 between the City of Tybee Island ( "Lessor ") and Verizon
Wireless of the East, L.P. d/b /a Verizon Wireless ( "Lessee ").
BEGINNING at a point shown as point 'A' on an exhibit prepared by HUSSEY,
GAY, BELL & DEYOUNG, INC., titled "Exhibit 'B', Proposed Lease Area from the
City of Tybee Island by GTE Mobilnet of the Southeast and Cellular One of
Savannah ", dated April 3, 1992, said point being an iron pipe set on the interior of
lands - belonging now or formerly to the City of Tybee Island, Chatham County,
Property Identification Number 4 -21 -05 -002, from whence the center support of the
elevated storage tank bears South 45 degrees 13 minutes 06 seconds West for a
distance of 24.99 feet from Point 'A' also from whence the northernmost support for
the elevated storage tank bears North 63 degrees 26 minutes 18 seconds West for a
distance of 10.60 feet from Point 'A'.
Thence; continuing across the lands belonging now or formerly to the City of
Tybee Island South 65 degrees 06 minutes 16 seconds West for a distance of 25.78 feet
to an iron pipe set.
Thence; continuing across the lands belonging now or formerly to the City of
Tybee Island North 69 degrees 53 minutes 44 seconds West for a distance of 27.18 feet
to an iron pipe set.
Thence; continuing across the lands belonging now or formerly to the City of
Tybee Island North 24 degrees 53 minutes 44 seconds West for a distance of 27.70 feet
to an iron pipe set.
Thence; continuing across the lands belonging now or formerly to the City of
Tybee Island North 65 degrees 06 minutes 16 seconds East for a distance of 45.00 feet
to an iron pipe set.
Thence; continuing across the lands belonging now or formerly to the City of
Tybee Island South 24 degrees 53 minutes 44 seconds East for a distance of 47.00 feet
to the point of beginning containing 0.04 acres, more or less.
Said parcel described herein is more clearly shown on an exhibit prepared by
HUSSEY, GAY, BELL & DEYOUNG, INC., titled "Exhibit 'B', Proposed Lease Area
from the City of Tybee Island by GTE Mobilnet of the Southeast and Cellular One of
Savannah ", dated April 3, 1992.
Site Name: Tybee Island
Site ID: 1303
Exhibit "A -2"
(Legal Description)
UTILITY AND ACCESS EASEMENT, TYBEE ISLAND, GEORGIA
All that certain lot, tract or parcel of land situate, lying and being in the 5th
G.M. District in the City of Tybee Island, Chatham. County, Georgia, being a portion
of Block 42, Fort Screven Ward as shown on a plat and recorded in Plat Book CC,
Page 263, dated June 22, 1979, in the Office of the Clerk of Court, Chatham County
Courthouse, being that tract of land more particularly described as follows:
Commencing at the intersection of the western right -of-
way line of Van Horn Street and the northern right -of -way
line of Fort Avenue being marked by an iron pipe;
continuing thence along the northern right -of -way line of
Fort Avenue S 60° 39' 39" W a distance of 152.03 feet to a
point being known as the point of beginning for the utility
and access easement; thence along the Fort Avenue right -
of-way line S 60° 39' 39" W a distance of 20.03 feet; thence
N 32° 32' 00" W a distance of 34.52 feet to a point; thence N
57° 28' 00" E a distance of 20.00 feet to a point; thence S
32° 32' 00" E a distance of 35.63 feet to a point on the
northern right -of -way line of Fort Avenue being described
above as the point of beginning, said utility and access
easement containing 0.016 acres.
The said tract as a whole is bounded as follows: On the North by the lease area
from the City of Tybee Island, on the East and West by the City of Tybee Island, on
the South by Fort Avenue.
Exhibit "B"
(Sketch of Property)
See attached sheets 1 of 2 and 2 of 2
(.---
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EXISTING
EQUIPMENT
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Exi5TIN5 LEEE
-
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I EXISTING 1 1 , SHELTER
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EXISTING GATE
EXISTING -- EXISTING FENCE
HATER TANK
SITE PLAN
SCALE: 1 .., 30
SHEET I uf 2
ME 404.1C:
TYBEE ISLAND
1 5 0 5
1S VAN HORNE AVE
TI'BEE ISLAND, GA 3I325 SITE HIJI‘BER: 8 , DATC „DESCRIP11:*:
, . 8/1103 .ISWED FOR REVIEW
VI51
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EX15TIN6 WATER TANK
PROPOSED
ANTENNAS
EXI5TIN6 GATKALK
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WATER TANK ELEVATION
NOT TO SCALE
SHEET 2 of 2
NALIE: 1 SITE MUMS: DAZE MCRIPTION: 1
TYBEE ISLAND 1303 g ♦ bA103 . 155.ED FOR REV1EH { ) NI•ttai )L .1
.J O. P �7f \11 I. ;. \\
6 VAN HORNE AVE \ V151-130
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� ri' EE ISLAND, GA 31328 ,
J VARIES Q ♦ � ♦ /�
Site Name: Tybee Island
Site ID: 1303
Exhibit "C"
LESSEE is authorized to install and maintain the following equipment:
NEW ANTENNA INFORMATION
Manufacturer and type- number: CSS SA 15 -86 -2D
Number of antenna(s): Six (6)
..Weight and dimension of antenna(s)
(LxWxD): 42.5 lbs; 96 "x14 "x9"
Diameter and length of transmission line: 1 -5/8 "; 165'
Height of antenna(s) on tower structure: 135'
Direction of radiation: 0° 120° 240°
Fr equ en c i es /M aximum Power Output
per antenna: Tx: 869.0 — 894
RX: 824.0 — 849
EXISTING ANTENNA INFORMATION
(INSTALLED UNDER PRIOR LEASE AGREEMENT
BUT NOW GOVERNED BY THIS AGREEMENT)
Manufacturer and type- number: Cellwave PD -1136
Cellwave PD- 1132R -3
Number of antenna(s): One (1)
One (1)
Height of antenna(s) on tower structure: 135'
Direction of radiation: 190° 15°
ATLI 11575008 v4/086510.00008