HomeMy Public PortalAboutAmerican Tower lease THIRD AMENDMENT TO GROUND LEASE AGREEMENT
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THIS THIRD AMENDMENT TO GROUND LEASE AGREEMENT ( "Third Amen ment")
is entered into as of the ,3) day of (' Lts1' , 2009 ("Effective Date "), by and between The
City of Tybee Island, a municipal corporon of the state of Georgia (hereinafter referred to as
"Landlord") and Spectrasite Communications, LLC, a Delaware Limited liability company, (hereinafter
referred to as "Tenant ").
WITNESSETH:
A. Landlord is the owner of that certain parcel of land (the "Property") located in the County of
Chatham, State of Georgia, and Landlord, and Nextel South Corp., predecessor in interest to
Tenant, entered into that certain Ground Lease Agreement dated December 11, 1997, (the
"Agreement") as amended by that certain First Amendment to Ground Lease Agreement, by and
between Landlord and Tower Asset Sub, LLC, predecessor in interest to Tenant, dated August 24,
2006, (the "First Amendment "), as amended by that certain Lease Amendment, by and between
Landlord and Tenant, dated December 21, 2007 (the "Second Amendment ") (collectively, the
"Lease "), whereby the Tenant leases a portion of the Property ( "Premises "), together with any
easements for ingress and egress and the installation and maintenance of utilities, all as set forth
in the Lease (hereinafter collectively the "Site "). The Property and Premises /Site are depicted in
Exhibit A attached hereto.
B. Landlord and Tenant desire to amend the terms of the Lease as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Compound Expansion.
a. Effective as of the Commencement Date (as defined below), Landlord hereby leases to
Tenant an additional 480 square feet of land ( "Additional Area ") contiguous to the
Premises as designated on Exhibit B. Upon the Commencement Date, the Additional
Area is hereby included in the Premises under the Lease. Exhibit B may be replaced by
Tenant with a survey depicting the actual legal description of the Premises and/or the Site.
b. Landlord hereby grants to Tenant, its officers, agents, employees and independent
contractors the right and privilege to enter upon the Property, Site, and /or the Additional
Area at any time after the date of this Amendment, to perform or cause to be performed test
borings of the soil, environmental audits, sampling, and /or tests, engineering studies and to
conduct a survey of the Property and/or the Site and the Additional Area. Landlord will
provide Tenant with any necessary keys or access codes to the Property if needed for
ingress and egress. Landlord will not unreasonably interfere with Tenant's use of the
Property in conducting these activities.
c. The "Commencement Date" shall be the earlier of: (i) the date Tenant notifies Landlord in
writing that Tenant elects to commence leasing the Additional Area; or (ii) the Rent
Commencement Date, as defined below.
d. The "Rent Commencement Date" is the earlier of: (i) the date that Tenant issues a written
`Notice To Proceed' to one of its actual or prospective licensees or subtenants
Third Amendment to Ground Lease Agreement Tybee Island, GA 303430
( "Customer ") for the purpose of commencing the Customer's installation of equipment on
all or a portion the Additional Area; or (ii) if no written Notice to Proceed is issued, then
the date that a Customer which has entered into a license or sublease agreement with
Tenant commences to install such Customer's equipment or other personal property at the
Additional Area;, or (iii) 18 months after the Effective Date of this Amendment.
e. The Rent Commencement Date shall be contingent on:
(i) Tenant entering into a binding agreement with a Customer for that Customer's
occupation of a portion of the Additional Area and Tenant and such Customer
obtaining all necessary certificates, permits, licenses, and other approvals that
may be required by any federal, state, or local authority for a Customer to occupy
and operate on the Additional Area and Site; and
(ii) Tenant determining, at its sole discretion, that the status of title of Landlord as to
the Additional Area is acceptable to Tenant; and
(iii) Tenant determining at its sole discretion that the Additional Area, Site and
Property are clear of any hazardous substances, which include any material or
substance which is or becomes defined as a hazardous substance, pollutant, or
contaminant, subject to reporting, investigation, or remediation pursuant to any
federal, state, or local governmental authority, and any oil, or petroleum products
or their by- products.
If any one of the above contingencies shall not be satisfied, then Tenant may, at any time
prior to the Rent Commencement Date, in writing to Landlord, terminate this Section 1 in
its entirety and this Section 1 shall then be null and void and of no further force and affect,
provided that the remainder of this Amendment will otherwise survive and continue in full
force and effect.
f. Commencing on the Rent Commencement Date, the monthly rent payable under the Lease
shall be increased by Six Hundred Seventy Five and No / 100 Dollars ($675.00) per month.
2. Landlord Consent. Landlord hereby consents and approves to the subleasing and /or licensing of
the Site, or a portion thereof, and/or Tenant's facilities, by Tenant, to New Cingular Wireless PCS, LLC
and its parents, subsidiaries, affiliates, successors and assigns ( "AT &T Wireless "). AT &T Wireless shall
be entitled to modify the Premises and any facilities or structures thereon and to erect additional
improvements on the Premises, including but not limited to, antennas, dishes, cabling, additional storage
buildings or equipment shelters.
3. Notices. All notices or demands by or from Tenant to Landlord, or Landlord to Tenant, required
under this Lease will be in writing and sent (United States mail postage pre -paid, certified with return
receipt requested or by reputable national overnight carrier service, transmit prepaid) to the other party at
the addresses set forth below, as applicable, or to such other addresses as the parties hereto may, from
time to time, designate consistent with this paragraph, with such new notice address being effective 30
days after receipt by the other party. Notices will be deemed to have been given upon either receipt or
rejection.
Third Amendment to Ground Lease Agreement Tybee Island, GA 303430
Landlord: City of Tybee Island
P.O. Box 2749
Tybee Island, GA 31328 -2749
Tenant: American Tower
10 Presidential Way
Woburn, MA 01801
Attn: Land Management
With a copy to: American Tower
116 Huntington Ave.
Boston, MA 02116
Attn: Legal
4. Paragraph 7 of the Lease is hereby deleted and replaced by the following: Modification of
Premises. Tenant, and its licensees and sublessees, without prior notice to or consent of Landlord, shall
have the right: (i) to modify, replace or repair any facilities, utilities, equipment, structures, property or
improvements ( "Improvements ") now or hereafter located on the Premises and (ii) to add additional
Improvements on the Premises. Improvements include, but are not limited to towers, antennas, cabling,
additional storage buildings, cabinets and shelters. Any provision of the Lease that requires additional
consideration to be paid to Landlord for the modification or addition of any Improvements is null, void
and of no further force and effect.
5. Approvals. Without limiting any of Tenant's other rights under the Lease, Landlord shall
cooperate with Tenant, at no out -of- pocket expense to Landlord, in Tenant's efforts to obtain, maintain,
renew and reinstate any and all of the certificates, permits, licenses, zoning, variances and other approvals
which may be required from any federal, state or local authority as well as any necessary easements for
Tenant or Tenant's sublessees, licensees, and /or customers' occupation or use of the Site (collectively, the
"Approvals "). Landlord agrees to execute within 15 days after receipt of a written request from Tenant
any and all documents necessary, in Tenant's reasonable judgment, and in a form reasonably acceptable
to Tenant to allow Tenant and its sublessees, licensees, and /or customers to obtain, maintain, renew or
reinstate the Approvals.
6. Signage. Without limiting any of Tenant's rights under the Lease, Tenant shall have the right to
install and maintain identifying signs or other signs required by any governmental authority on or about
the Site, including any access road to the Site.
7. Documentation. Upon any permitted transfer or assignment of the Landlord's interest in this
Lease, prior to Tenant's being obligated to make any rent or other payments to the successor Landlord,
Landlord's successor will provide Tenant with a completed Internal Revenue Form W -9, or then
equivalent form, and any other reasonably necessary documentation requested by Tenant in order to
confirm such transfer of the Lease.
8. Memorandum of Lease. Upon request by Tenant, Landlord shall execute and deliver to Tenant
a Memorandum(s) of Lease, reflecting this Amendment, in a form reasonably acceptable to Tenant and
which is recordable in the county in which the Property is located.
9. Ratification/Estoppel. Tenant and Landlord each hereby ratifies and confirms that the Lease is
in full force and effect. Landlord represents and warrants that, as of the Effective Date, Tenant is not in
default in the payment or performance of its obligations under the Lease and, to the best of Landlord's
current knowledge, there is no existing condition that, although not presently a default, may result in a
Third Amendment to Ground Lease Agreement Tybee Island. GA 303430
default under the Lease. Except as modified herein, the Lease and all the covenants, agreements, terms,
provisions and conditions thereof remain in full force and effect and are hereby ratified and affirmed. If
any inconsistency exists or arises between the terms of the Lease and the terms of this Amendment, the
terms of this Amendment shall prevail.
10. Entirety; Amendment; Counterparts. This Amendment, together with the Lease, constitutes
the entire agreement among the undersigned parties hereto. Any modification to this Amendment must be
in writing and signed and delivered by authorized representatives of the affected parties in order to be
effective. This Amendment will be governed by the laws of the state in which the Site is situated. This
Amendment may be executed in any number of counterparts, each of which shall be an original, which
may be delivered via facsimile, but all of which taken together shall constitute one instrument.
Third Amendment to Ground Lease Agreement Tybee Island, GA 303430
IN WITNESS WHEREOF, Landlord and Tenant have each executed this Third Amendment as
of the Effective Date written above
LANDLORD: WITNESSES:
The City of Tybee Island,
a municipal corporation of the state of Georgia
-2. - 4S 4.4 t4..�c y Signature
t Aivi Print Name j rti t it 1
/..k, 4 '
Signature
Print Name: (Se, Ak(r
ACKNOWLEDGEMENT
State of
County of ` )
On 1 ; : iktN L before me, k � L _ .r`C % ' (here insert name), a Notary
Public, personally appeared ,NcAk . ; �� i ,mac t C >���i �v , personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to
the within instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public, ,
Print Name: u \' \. () \ ` }� ` - 115
My commission expires: 1 t c
Third Amendment to Ground Lease Agreement Tybee Island, GA 303430
FIRST AMENDMENT TO
GROUND LEASE AGREEMENT
THIS FIRST AMENDMENT TO GROUND LEASE AGREEMENT ( "First Amendment ") is
entered into on the Z `( day of eQk-t f ,, Ls , 2006, by and between The City of Tybee Island, a
municipal corporation of the State of Georgia (hereinafter referred to as "Lessor") and Tower Asset Sub,
LLC, a Delaware limited liability company (hereinafter referred to as "Lessee ").
WITNESSETH:
WHEREAS, Lessor and Nextel South Corp., a Georgia corporation, predecessor in interest to
Lessee executed and entered into that certain Ground Lease Agreement dated December 11, 1997, (the
"Lease "), for the purpose of installing, operating and maintaining a communications facility and other
improvements on the Site (as described in Exhibit A attached hereto and incorporated by reference
herein); and
WHEREAS, Lessor and Lessee desire to amend certain provisions in the Lease;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this
Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, Lessor and Lessee hereby agree and contract as follows:
1. Lessor hereby leases to Lessee an additional Five Hundred Fifty -Five (555) square feet
contiguous to the leased area as described in Exhibit B attached hereto and incorporated by
reference herein. Lessee shall continue to pay as obligated under the Lease pursuant to Paragraph
6.
2. Lessee shall pay Lessor additional consideration for the ground space comprised of 555 square
feet in the amount of Four Hundred and Two and No/Dollars ($402.00) per month commencing
on the date a notice to proceed is issued to a tenant of Lessee to install within the additional
ground space. This additional consideration shall also increase as set forth pursuant to the terms
of the Lease.
3. Paragraph 22 is hereby deleted and replaced with the following: "Notices. All notices must be in
writing and shall be valid upon receipt when delivered by hand, by nationally recognized courier
service, signed receipt requested, or by First Class United States mail, certified, return receipt
requested, addressed as follows:
Lessor: The City of Tybee Island, Georgia
403 Butler Avenue
P.O. Box 2749
Tybee Island, GA 31328 -2749
Lessee: American Tower
10 Presidential Way
Woburn, MA 01801
Attn: Land Management
With a copy to: American Tower
First Amendment to Ground Lease Agreement Tybee Island GA, Site # 303430
116 Huntington Avenue
Boston, MA 02116
Attn: Legal Department
The parties may substitute recipient's names and addresses by giving at least thirty (30) days
notice. Rejection or refusal to accept delivery of any notice, or the inability to deliver any notice
because of a changed address of which no notice was given, shall be deemed to be receipt of any such
notice."
4. The following is inserted as Paragraph 25: "Signage. Lessor grants to Lessee the right to
install and maintain during the Teem of this Lease identifying signs or other types of signs
required by any governmental authority on or along any access road to the Site, including, if
necessary, signs visible from the nearest public street, at locations where an access road diverges,
or if an obstruction obscures visibility of the Site and Improvements. Lessee agrees to minimize
the size of such signs as reasonably required for readability and compliance with regulations or
directives of any governmental authority. Lessee hereby agrees to abide by local signing
ordinances to the extent applicable."
5. Lessor represents and warrants that as of the date of this execution, there are no uncured defaults
under the terms of the Lease and that the Lease is in full force and effect.
6. All other terns of the Lease except as may be amended herein, or as may be in conflict with the
provisions of this First Amendment, shall be deemed incorporated into this First Amendment.
7. Except as amended herein, all terms, conditions, provisions, covenants and agreements contained
in the Lease are hereby ratified and confirmed in their entirety. The terms used herein and not
otherwise defined in this First Amendment shall have the same meaning as set forth in the Lease.
[SIGNATURES NEXT PAGE]
First Amendment to Ground Lease Agreement Tybee Island GA, Site # 303430
IN WITNESS WHEREOF, the parties hereto have set their hands and seals on the day
first above written.
LESSOR: WITNESSES:
The City of Tybee Island,
a Municipal corporation of the State of Georgia
ociepsi.„ I .N . L •
j� Print Name:
ts: 037 L Mock
Print Na
Approved as to form:
'L
Edward M. Hughes, Esq.
City Attorney
LESSEE:
Tower Asset Sub, LLC
a Delaware limited liability company
d i
�
Jasos� Hirsch Tr , - �,_ i � - 70
D• ector, Land Management
Print Name: 1'44,3, /2
First Amendment to Ground Lease Agreement Tybee Island GA, Site # 303430
1
i
LEASE AMENDMENT
This LEASE AMENDMENT ("Amendment") is made effective as of the latter signature date hereof ( "Effective Date ") by and
between CITY OF TYBEE ISLAND ( "Lessor ") and Spectrasite Communications, LLC, a Delaware limited liability company ( "Lessee ").
RECITALS
A. Lessor, or its predecessor in interest, and Lessee, or its predecessor in interest, entered into that certain lease dated December 11,
1997 (as amended, the "Lease "), whereby the Lessee leases a portion of the real property owned by Lessor ( "Property ").
B. Lessor and Lessee desire to amend the terms of the Lease to extend the term thereof and as otherwise provided herein.
NOW, THEREFORE, in consideration of the foregoing recitals and mutual covenants set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Lease Term Extended: Lessee shall have the option to extend the Lease for each of four (4) additional five (5) year renewal terms (each
a "Renewal Term "). The first such Renewal Term shall commence on the day following the expiration of the last remaining renewal
period available under the Lease. The Lease will automatically renew for each successive Renewal Term unless ninety (90) days prior
to the expiration of the then current term Lessee notifies Lessor that Lessee elects not to renew the Lease.
2. Rent and Escalation: Commencing on December 1, 2017 and each additional term thereafter, the rent, payable under the Lease is
hereby increased by an amount equal to 15% of the rent payable for the year immediately preceding such increase. Lessor and Lessee
agree that all rent and payments in accordance with this lease amendment shall continue to be paid to, and all taxable income from the
same shall be reported by, CITY OF TYBEE ISLAND GA.
3. One -time Payment: Lessee shall pay to Lessor a onetime payment in the amount of $6245, payable within ten (10) business days of
Lessee's receipt of this Lease Amendment executed by Lessor. Such onetime iayment is contingent on Lessee receiving the executed
lease amendment by . Dec-ern /.e,Iz 2l 2,2 7 ,
4. Memorandum of Amendment. Upon written request by Lessee, Lessor shall lly cooperate with Lessee and execute a Memorandum
of Lease that is recordable within the jurisdiction in which the Property is located. Lessor agrees not to transfer, assign, sell, or convey
any or all interest of the Property to another party until Lessee records a Memorandum of Lease. This provision shall not apply to any
sale or transfer of the Property from Lessor to any member of Lessor's immediate family. For the purposes of this provision, Lessor's
immediate family shall be defined as the parents, children, grandchildren or siblings of the Lessor.
5. Full Force and Effect; Entirety: Amendment; Counterparts. Except as modified herein, the Lease and all the covenants,
agreements, terms, provisions and conditions thereof remain in full force and effect and are hereby ratified and affirmed. This
Amendment, together with the Lease, constitutes the entire agreement among the undersigned parties hereto. Any modification to this
Amendment must be in writing and signed and delivered by authorized representatives of the affected parties in order to be effective.
This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which taken together
shall constitute one instrument.
IN WITNESS WHEREOF, Lessor and Lessee have each executed this Amendment as of the dates written below.
LESSEE: LESSOR:
Spectrasite Communications, LLC, a Delaware limited CITY OF TYBEE ISLAND
liability company
,>,7
'IV \-------
• By: Jason D. f sch
5? A.<04 11-• g a 1
Its: Vice P , zdent, Land Manage ent Its: I"-
Date: / 49/3,6/63 /./ /4 , o --- Date: • �^t. (s 7
/(k------ _____/34.:Lxii,...Azzaa____
By: 1 L ' -1 1, rk V Cc
Its: .6,
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Date: t Z (Z o ( Dei
t TYBEE ISLAND /303430/GA
05/01/2003 14:18 FAX 919 465 6826 SPECTRASITE Z001
•
p ectraSite
FAX Cover Sheet
bate: May 1, 2003 No. Of Pages: I (with cover)
To; Vivian Woody City of Tybee Island FAX; 866 - 786 -5737
Froth: Diane Bolding
Tower Operations South Region
FAX: (919) 468-8522 Phone: (919) 466 -5582
Message:
G.A. -- 7011 /Tybee Island
Vivian.:
Attached is the Ground Lease Agreement for cell tower site GA- 7011. Rental checks are
currently in the amount of $1,15930 (ground rent), as per Paragraph 5 of the lease. There are
no subleases on the tower, therefore there is no additional rent due to collocation as per
Paragraph 6.
If you have any further inquires, please feel free to contact me at the number listed above.
j e
Diane L. Boldixig ly
400 Regency Forest Drive, Gary NC 27511
T
• 9- 468 -0112 Faux: 919 - 468 -8822
www.spectrnsite.corn
(:tom f
g8.-- RE -- 366 i7
05/01/2003 14:19 FAX 919 465 6826 SPECTRASITE i�1j002
;. Ak. 1-01
GROUND LEASE AGREEMENT
Jqq.
THIS WOUND LEASE A,OREEMENT, hereinafter Lease Agreement, maade this /El
''
day of /` . ,19 qg, by and between THE C1TY OF TYBEE ISLAND, a municipal
corporation of the State of Georgia, hereinafter designated as Lessor, and NEXTEL
SOUTH CORP., a Georgia corporation, hereinafter designated as Tenant.
RECITALS:
WHEREAS, the installation on 'Lessor -owned Property, of equipment,
including antenna and cell facilities and related equipment, to enable the provision of
mobile telecommunications and high - capacity telecommunications services as well as other
telecommunications services will improve the quality and availability of these services in the
city by improving the accessibility of antenna and cell sites and the conneetic n of such sites,
and,
WHEREAS, the use and installation, of such facilities and equipment wall
provide for the deployment of innovative technologies serving the diverse needs of the City's
residents and businesses by providing practical service for everyday communications as well
as access to emergency services, health services, commercial businesses and residences, and,
IIHEREAS, the availability of such facilities will provide redundancy and
route diversity and an alterative to traditional telephone services in the event of localized
or citywide disaster, and
WHEREAS, suitable Lessor - owned Property located near the police station
at Tybee Isbnid, and not being utilized for other public purposes has been identified on
which to site a communications tower, and
WHEREAS, Lessor covenants that Lessor is seized of good and sufficient title
and interest to the Property, as hereinafter defined, and has full authority to enter into and
execute this ;tease Agreement and further covenants that there are no other liens, judgments
or impediments of title on the Property;
NOW THEREFORE, FOR AND IN CONSIDERATION of the mutual
covenants and conditions set forth herein, and other good and valuable consideration, the
receipt end sufficiently of which is hereby acknowledged, the parties hereby agree as follows:
1. PROPERTY ACCESS
Lessor hereby leases to Tenant and Tenant leases from Lessor that speciftcz
land area, hereinafter called the Property, identified and described in attached Exhibit "A',
which is located in the City of Tybce Island, Georgia for the term, and at the reset, and upon
OR
(DOM. 17.(1A1
11/01/2003 14:19 FAX 919 465 6826 SPECTRASITE 211003
' ,:
all of the conditions and agreements set forth herein. Excluding circunastances and/or events
beyond the control of Lessor, nonexclusive access to the Property iEtduding ingress and
egress from public roads through property owned by Lessor will be available, 24 hours a day,
7 days a week by foot or by motor vehicle.
Lessor grants Tenant the right and easement to use adjoining and adjacent
Lessor-owned property identified more fully in Exhibit "B", attached hereto and incorporated
by reference herein, as is reasonably required during construction, installation, maintenance,
and operation of the GOVIMUttielltiOlIS facility, provided, however, that Tenant shall
indemnify and hold harmless Lessor 'from any and all loss or damage arising solely from , r
• Tenant's use of said right and casement granted herein.
, By taking possession of the Property, Tenant accepts it in the condition in
which it may then be except for latent or hidden defects, and waives any right or claim
;against lAa'0r arising out of the Property, inclading, the improvements thereon, the
appurtenances thereto, and the equipment thereon. The Lessor hereby represents and ,
warrants to the Tenant that, to the best. of its knowledge but without investigation, the
Property is not contaminated in violation of applicable laws by hazardous materials,
hazardous waste or hamirdous substances. Tenant hereby covenants and agrees that on or
i after the date hereof, it shall not introduce in or on the Property in violation of applicable
lavis any hazardous substances, hazardous materials or haZilftiOUS wastes, and agrees to
indemnify and hold harrniessl.,4SW from eny and 4 loss or damage caused by violation of
, such covenant.
s
Tenant ' $ h for
pay
2. NECESSARY UTILITY FACILITIES
"1"enatit shall have access, consistent with the term of the Lase Agreement,
..
foot right.obway over, under or along a
t i f i a t t a ' ..-14 1 ( la V ii 7 oft '44" ' a ) it a d r.ei n e ti l t l ..-, it it te ,,—. to o t f ile nti lia lity as w e ir P e a s l , c c e a l' b Is les s , li c a oL n u o it n s Eanxiihipbi Tnca
Exhibit 1,C' att
,
for all charges for electricity and other utility services used by Tenant on the Property
(including the right to install, or have installed, a backup electrical generator solely for the
use of the Tenant). The liability and indemnity requirements as provided for in Section 12
and the insurance requirements as provided for in Section 13 shall also apply to Tenant's
use of the right-of-way.
' u
3. RIGHT TO SURVEY
lessor also hereby grants to Tenant the right to survey said ProperV, and the
legal description on said survey shall then become Exhibit "Er, which shall be attacked
, hereto and made a part hereof, and shell control in the event of discrepancies betwceu h
and Exhibits "A' and "B". Lessor grants Tenant the right to take measurements, make
, }
' 2
_i
05/0i/2063 14:20 FAX 910 465 6326 SPECTRASITE ig uo4
calculations, and to note other structures, setbacks, uses or other information as deemed by
Tenant to be relevant and pertinent and, as such information relates to Lessor's real
property, leased or otherwise abutting or surrounding the Property. Bost for such survey
work shall be borne by Tenant.
4. TERIVI
This Lease Agreement shall be for an initial ten of five (5) years beginning
on the date the fuse Agreement is executed by the Mayor of the City of Tybee island. So
long as no default exists in Tenant's obligations hereunder, this base Agreement shall have
three (3) renewal terms of five (5) years each, which renewals shall autotxtatically take effect
upon expiration of the prior tern, provided, however, after the initial term, the Tenant may
elect not to exercise any subsequent renewal term by giving not less than one hundred and
twenty (120) days written notice to the Lessor prior to commencement of any such renewal
term.
5. RENTAL PAYMENT
Rent dung the initial five (5) year term, shall be paid at an annual rental
amount of TWELVE THOUSAND DOLLARS AND 001100ThS ($12,000.00) to be paid
is equal monthly installments of ONE THOUSAND DOLLARS AND OO19 OOTTHS
($1,000.00) on the first day of the month, hi advance, to the CITY OF TYBEE ISLAND
or to such other person, firm or place as Lessor may, from time -to- time, designate in writing
at least thirty (30) days in advance of any rental paxn,ent date.
The annual rental amount for the first (5) year extension shall be in the
amount of THIRRTFF,N THOUSAND NINE HUNDRED ELEVEN DOLLARS AND
241,100THS ($13,911.24) to be paid in equal monthly installments of ONE THOUSAND
ONE HUNDRED FIFTY-NINE DOLLARS AND 27\100THS ($1,159.27) as aforesaid.
The annual rental amount .for the second (5) year extension shall be in the
amount of SEEN THOUSAND ONE HUNDRED TWENTY DOLLARS AND
9211 THS ($16,126.92) to be paid in equal monthly installment, of ONE THOUSAND
THREE HUNDRED FORTY- THREE DOLLARS AND 91\100THS 01,343.91) as
aforesaid.
The annual rental for the third fivewyear extension shall be in the amorsnt of
EIGHTEEN THOUSAND SIX HUNDED NINETY -FIVE DOLLARS AND 52110OTHS
(18,695.52) to be paid in equal monthly installments of ONE THOUSAND FIVE
BRED FIFrY,SEVEN DOLLARS AND 961100TH ($1,557.96) as aforesaid.
3
05/01/2003 14:21 FAX 919 465 6826 SPECTRASITE I] 005
6. COLLOCATION AND FURTHER CONSIDERATION
To the extent Tenant offers and subleases the use of tower space to unrelated
entities as sublessees whether in connection with mobile sevice or for any other
•
telecommunications or related service, Tenant shall further pay an additional monthly fee
to lessor in the kiln of rent in the amount of ten percent (10%) of the amount received
from each sublessee in return for the use of the facility. This additional rental fee will be
in addition to and not in lieu of rental fees payable pursuant to the preceding Section 5.
Stith additional rental payment shall bo made monthly sitnultanaeously with the regular rental
payment on the first day of the month. Failure to remit the additional rental payment shall
constitute a default as provided for in Section 11k(i) of this Lease Agreement.
Lessor shall additionally have the a c]uive use of the space on the tower
win clais located between 9,5 11,1r /C)5 r (description
of height of tower at which City's equipment wit a placed). Lessor will install equipment
which does not exceed the maximum load limitations as directed by Tenant, Prior to any
installation of any equipment, Lessor shall submit detailed plans and specifications to Tenant
for its review and approval, which approval shall not be unreasonably withheld, delayed or
conditioned. Tenant shall ensure that the plans and specifications are consistent with
Lessor's and Tenant's operations and will not cause interference with Ten'ant's pearnitted
use. In the event Lessor's equipment, despite Tena'nt's efforts to avoid same, causes
interference with Tenant's equipment and operations, the the Lessor to the extent its
equipment is installed after that of the Tenant's. shall cease operation of such equipment
until such interference issues can be resolved to the mutual satisfaction of the parties,
7. USE OF PROPERTY
Tenant agrees to use the Property solely for the purlaoses of constructing,
maintaining, repairing, operating and removing a communications facility, which may ir lode
subleases with others as provided for is Section 20.B. of this Lease Agreement, and such
facility shall consist of a monopole structure of 150 feet maximum to meet Tenant's
telecommunications needs, equipment buildings and equipment for cmnmththcation,
reception and transmission and appurtenances to the building and equipment.
Ali materials furnished for work clone can the Property by Tenant shall be at
Tenant's sole cost and expense. Tenant agrees to protect the Property, and Lessor, from
all claims of contractors, laborers and raterialrrien.
8. MAINTENANCE AND INSPECTION
Tenant shall at all times during the term of the Lease Agreement maintain the
tower and all appurtenances and related equipment in good repair. Immediate on
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cornpletioaa of pg astrailsjsm "fenart shed anyide l t ezneritten documentation execute
a respeaasible Compan attestiee to the structural iarte the trsvrer as it is built
and further certifying that the tower as built on site is of sufficient size and streeeth 'under
current industry standards safely accommodate the customa a tenna array of $e least
three wireless communications services providers, which shall be certified by an engineer
according to the structural standards developed by and applicable to the industry. To ensure
the ongoing, structural integrity of the f rcility, Tenant shall also maintain the tower in
compliance with standards contained in applicable local building codes and the applicable
standards that are published by the Electronic Industries Association or the
Telecommunication Industry Association, as amended from time to tine.
The tower must meet or exceed current standards and regulations of the FAA,
the KC, and any other agency with the authority to regulate towers and antennas. If such
standards and regulations are changed, then the Tenant shall bring the condition of the
tower into compliance. as soon as possible but in no event later than the compliance date
as provided for by the changed standard or regulation. In the event such standards or
regulations are changed, and the cost to upgrade the tower is excessive, in Tenant's
reasonable determination:, than it may terminate this Lease Agreement upon thirty (30) days
prior written netiee to Lessor, it shall promptly remove the tower, all electronic equipment,
aaatennas, and other items of personal property from the Property, leaving, however, the
concrete foundation, which shall in no event be removed.
Lessor shall upon reasonable notice have the right to inspeet the Property and
any associated communications facilities or appurtenances for compliance with the terms and
conditions of this Lease Agreement and for compliance with any such zoning or other
ordinances or regulations as may be applicable.
9. PERMITS AND APPROVALS
Tenant shall abide by all zoning arad other procedural requirements governing
the location of such facilities. Tenant shall, as its sole cost and expense obtain all Federal,
State and local authorizations required in order to construct, operate, or otherwise •
implement its use of the Property, Upon request, Lessor agrees to cooperate with Tenant
in obtaining, at Tenant's expense, any licenses, permits and other approvals required.
It is understood and agreed that Tenant's ability to use the Property is
contingent upon its obtaining all of the certificates, permits and other approvals that may
be required by rimy federal, state or local authority. In the event that any of such
applications should be finally rejected or any certificate, permit, license or approval issued
to Tenant is canceled, expires, lapses, or is otherwise withdrawn or terminated by
• governmental authority, Tenant and lessor shall have the right to terminate this Lease
Agreement under the terms and conditions provided in Section 1O.
5
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05, 01!2003 14:22 FAX 919 465 6826 SFECTFASITE 4007
•
Prior to taking possession of the Property, Tenant will file a site plan for the
use of the Property, to include such information as Lessor may deems reasonably necessary,
Lessor shall be empowered to approve or disapprove the site plan, including the power to
place reasonable conditions on and make warranted adjustments in the provisions of the site
plea as submitted.
In addition the site plan information as indicated in the preceding paragraph,
all site plans shall include the provision of security fence, to be erected on site and at
Tenant's expense, of not less than six feet (6') in height and equipped with an anti - climbing
device, consisting of chain link construction or similar but comparable construction which
shall be placed around the perimeter of the Property (not including the easement). At
Lessor's discretion, appropriate landscape buffer shall be included in the site plan such that
plant materials that effectively shield the view of the tower componrid from the perimeter
of the Property shall be included. The standard buffer shall consist of a landscaped area of
not less than four feet (4') in width,
t TERM1NATtON
to re i ra of Leese reer
At the expiration of the term of the Lease Agreement and any extension
thereof, the tower, being the sole possession of Tenant shall within sixty OD) clays, be
removed by Tenant at Tenant's expense, Tenant shall also remove its personal property
and fixtures and restore the Property to its original above grade condition. When this
Lease Agreement is terminated, at Lessor's choice and upon Lessor's advance written notice
to Tenant, Tenant will leaves the foundation, landscaping and security fence, if any, to
become property of Lessor.
B. Termination by Tenant.
Notwithstanding anything herein to the contrary, this Lease Agreement may
be terminated by Tenant on sixty (60) days prior written notice under the following
circumstances:
(1) if Tenant is unable to occupy and utilize the Property due to
public condemnation;
(ii) if Tenant determines that the Property is not appropriate for its
operations for tt` °hnolo ieal reasons, including without limitation, signal interference;
(iii) if Ten_tnt cannot obtain or maintain zany license, permit or other
approv d necessary for the construction and operation of Tenant's equipment; or
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t;
(iv) if T enarit is unable to occupy and utilize the Property due to an
action of the FCC or other agency having jurisdiction, including without limitation, a take
back, of channels or change in frequencies.
Notice of Tenant's exercise of its right to terminate shall be. given to lessor in
writing by certified mail, return - receipt requested, and shall he effective upon receipt of such
notice by lessor as evidenced by the return receipt. All rentals paid to said termination
date shall be retainer! by Lessor. Upon such termination, and the subsequent satisfactory
removal of structure and restoration of the premises by Tenant, this Base Agreement shall
become null and void and all the parties shall have no fuaalter obligations, including the
payment of money except for accrued indemnity obligations, to each other, however, all
rental obligations of tenant shall continue until satisfactory removal of structure and
restoration of premises.
C. Termination by Lessor.
Lessor may cancel this Lease Agreement under the following circumstances
by giving written notice to Tenant:
(i) 120 days before the end of the second Eve (5) year term; and
120 days before the end of each five (5) year extension period;
(ii) at an event of default under the terms and conditions and
through the procedures as indicated in Section 11 of this Lease Agreement.
11. DEFAULT AND EFFECT OF DEFAULT
A. Default.
Each of the following events shall constitute a default of this lease Agreement
by Tenant:
(i) if Tenant fails to pay rent or other sums herein specified with
ten (10) days of the date such rent or Burns are clue and such failure continues for a period
of thirty (30) days after written notice is given to Tenant;
(ii) if Tenant fails to perform or comply with any of the conditions
or covenants of this Lease Agreement and such failure continues for a period of thirty (30)
days after written notice thereof, unless the performance cannot be reasonably completed
within the thirty-day period and Tenant has commenced good faith efforts to perform and
is diligently proceeding to complete performance and has provided Lessor with a date
certain by which performance will be completed and /or compliance achieved.
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B. Effect of Default.
Lessor shalt have the right, if any default continues for more than thirty (30)
days after written notice, to provide notice to Tenant of its immediate termination of the
Lease Agreement. Lessor may remove at Tenant's expense or require Tenant to remove
Tenant's equipment, property and structures from the Property (excluding below ground
elements and foundations), without prejudice to any other remedy which Lessor might be
entitled to pursue. Payment of rent shall continue until such time as the communications
structure and any other appurtenances are removed and the premises are restored to their
prior condition (excluding below ground elements and foundational,.
12. LIABILITY Y AI's!:) INDEMNITY
Lessor shall not be liable to Tenant, sublessees or to any other person or
entity whatsoever for any damages or injury from any cause whatsoever, during the terra of
and with respect to the scope of this Lease Agreement, except for damages or injury solely
attributable to and proximately caused by the gross negligence or willful misconduct of
Lessor. During the term of this .Lase Agreement, Tenant agrees to indemnify, defend and
save Lessor harmless from and against any and all claims, loss or damage of whatever
nature, arising from Tenant's and sublessee's use of the Property, the adjacent right-of-way,
and any other adjacent and /or adjoining property to which Tenant has been granted access,
and the oonstructian, use, maintenance, or operation of the tower, including ingress and
egress, except for damages nr injury solely attributable or proximately caused by the gross
negligence or willful misconduct of Lessor. This indemnification shall include all costs,
expenses and liabilities incurred in connection with any claim or proceeding brought,
including the reasonable expense of investigating and defending any such claim..
13. INSURANCE
A. Require d.lnsurance.
Tenant at its sole cost and expense, shall procure and maintain oar the
Property, and on its facilities and equipment installed thereon, bodily injury and property
damage insurance with a combined single limit of at last one million dollar (S1,O00,000) per
occurrence. Such insurance shall insure, on an occurrence basis, against all liability of
Tenant, its employees and agents arising out of or in connection with T'enant's use of the
Property (and any easements, rights - of way, or other of Lessor's real property interests), all
as provided for herein. Lessor shall be named as an additional insured on T'enant's policy.
Tenant shall provide to Lessor a certificate of insurance evidencing the coverage required
by this paragraph within thirty (30) days following the date hereof. In no event shall the
limits of the policy or policies be considered as limiting the liability of tenants under this
lease agreement.
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•
14. SECURITY FUND
At or prior to the execution of this Lease Agreement, and as a condition
precedent thereto, Tenants will deposit with Lessor the amount of FIVE THOUSAND
DOLLARS AND O&l1OOTHS ($5,000.00), which shall constitute Tenants' security fund.
•
The seeurity fund shall serve as security for the performance by :tenant of all
terms, conditions and obligations of this Lease Agreement and to cure any performance
failure which can be cured through payment cif the .eecud y fund, inchudieg payment of rent
and additional rent, reimbursement for the expense of removal of the telecommunications
towers and appurtences thereto, and any expenditure, damage or loss incurred by Lessor
ocasioned by Tenants' failure to coaauply with all rules, regulations, osiers, permits and
other directives of Lessor included pursuant to this Lease Agreement.
•
15. PROPERTY REMOVAL, PROCEDURES IN THE EVENT OF
ABANDONMENT •
A. Property Removal,
At termination by Lessor, termination by Tenant, expiration of the terse of the
Lease Agreement and any extension thereof, at abandonment or in any cireumstance in
which the Lease Agreement shall cease, the tower and communications facility, to include
Oil site property and equipment of Tenant's Sublessees, being the sole possession of Tenant
•
shall, within sixty (60) days of written notification by Lessor, be removed by Tenant at
Tenant's sole expense. Tenant shall also remove its personal property and fixtures and that
of its sublessees and shall restore the Property to as near as practical to its original above
grade condition. Lessor acknowledges and agrees that all equipment, towers and trade
fixtures placed upon the Property by the Tenant or its sublessees, shall remain the property
of Tenant or its sublessees and shall not be deemed fixtures repon the property, Lessor
hereby waiving all lien rights it may have in and to such property. When this Lease
Agreement shall cease through termination, cancellation, abandonment or expiration or for
any other reason, at Lessor's choice and upon Lessor's advance written notice to Tenant,
Tenant will leave the foundation, landsr aping, security fence, if any, to become property of
Lessor. Otherwise, all fixtures shall be removed and the Property shall be restored as near
as practical to its original above grade condition within sixty (60) days of the effective date
of termination.
B. Abaaatclo rirtieret.
Aiy monopole that is not operated in fulfillreet of the purposes to which it
was intended and as described in Section 15, for a continuous period of twelve (12) months,
shall be coneitiered abandoned. Within the context of this lease Agreement, abandoned
3
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U5/91/2UU3 14:25 FAX 919 465 6826 SPECTRASITE X4.]011
shall mean that, at a minimum, none of the three antenna. arrays which the monopole was
built to accommodate is fully functional and operational and fulfilling in an ongoing manner
the purpose for which it was originally erected. In the event of such abandonment, the •
Lease Agreement shall be canceled as provided in Section 15. Tenant shall be under a duty
•
to remove such abandoned monopole and any other structures or equipment considered to
be a part rrf the communications facility in a manner as required by Section 15.A. Property
Removal,. If such monopole and all related structures and equipment are not removed
within sixty (60) days after receipt of eotice from the Lessor of such abandonment, Lessor
may remove such Monopole and associated equipment at Tenant's expense. Lessor may
• pursue all legal remedies available to it to insure that an abandoned monopole and
associated communications facilities are removed and reimbersement of the expense of
removal is obtained, Lessor inay seek to have the Monopole and associated communications
facility .removed following the abandonment described herein regardless of Tenant's intent
to operate the Monopole and regardless of any permits, federal, state or otherwise, which
may have been granted.
16. TAXES
Tenant is solely responsible for any and all taxes assessed by reason of the
erection by Tenant of its communications facility and equipment described herein, which
taxes shall be paid promptly when due by Tenant.
17, SALE SUBJECT TO LEASE AGREEMENT
Should Lessor at any tune during the tern of this Lease Agreement, decide
to sell all or any part of the real Property which includes the parcel of Property leased by
Tenant herein and /or the right -of -way thereto to a purchaser other than Tenant, such sale
shall be under and subject to this Lease. Agreement and Tenant's rights hereunder.
IS, PEACEFUL POSSESSION
Lessor covenants that Tenant, upon the payment of rent and the performance
or the covenants shall peaceably and gsxietly have, hold and enjoy the Property for the terra
• of the Lease Agreement and any renewal tenns.
19. ALL AGREEMENTS
Tt is .agreed and understood that this Lease .Agreement osrntains all
agreements, promises and understandings between Lessor and Tenant and that no verbal
or oral agreements, promises or understandings shall be binding upon either Lessor
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Tenant in any dispute, controversy or proceeding at law, and any addition, variation or
modification to this Lease Agreement shall be void and ineffective runless made in writing
and signed by the parties.
20. GOVP:RN!NC LAW
This Lease Agreement shall be governed, interpreted and construed according
to the laws of the State of Georgia.
21. ASSICNMENT AND SUBLET INC
A. Assignment.
•
Tenant may not assign, or otherwise transfer all or any part of its
interest in this Lease Agreement or in the Property without the prior written consent of •
Lessor. Such consent shall be requested 1211 clays in advance of the anticipated transfer and
shall include such information as the City in its sole judgment may deem essential. The
prior consent of the City shall not be required with respect to solely intraeorpornte transfers
•
or reorganizations between or among majority -owned or controlled subsidiaries or affiliates
of Tenant to the extent any such transaction does not involve a change irt the actual working
control of the company, but the City will be given ninety (90) days written notice of any such
transaction and Tenant will provide such information related to the transaction as may be
reasonably requested by the City. Not tlhstnandistg than foregoing, or anything to the
contrary herein, Tenant may assign, mortgage, pledge, hypothecate or otherwise transfer
without consent its interest in this Lease Agreement to any financing entity, or agent on
behalf of any financing entity to whom Tenant has obligations for borrowed money or in
respect of guarantees thereof, as obligations evidenced by bonds, debentures, notes or
similar instruments, Or has obligation under or with respect to letters of credit, banker's
acceptances and similar facilities or in respect of guarantees thereof.
R Subletting.
Tenant may negotiate and execute agreements to sublease space on the tower-
on terms consistent with the provisions of this Lease Agreement and shall ensure, that any
sublessee's use of the tower does not interfere with lessor's use of the tower. Any action
or omission of a sublessee which violates any provision or condition of this Lease Agreement
is deemed an action or omission of Tenant.
Lessor shall be informed by Tenant in writing no less than thirty (30) days in
advance of the anticipated date of sublessee's taking possession of subleased tower space,
of Tenant's request to sublease tower space to any unrelated entity. Lessor shall have the
• further right to approve sublessees. Tenant shall provide Lessor a copy of the documents
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05/01/2003 14:26 FAX 019 465 6826 SFECTRASITE 2013
which provide the terms and conditions under which the sublessee will be required to
operate, including the rental amount or value of a,ny in »kind contribution which Tenant will
receive in return for the use of the telecommunications facility as well as the term of the
sublease.
Notwithstanding the, foregoing, Tenant shall not be allowed and shall not
sublet any portion of tlse ground space or land described on Exhibits "A ", `B' and "C"
hereof. Nor shall it be permissible for Tenant to stack communications equipment or to
permit any other provider or unrelated entity to stack communications equipment on the
premises described in Exhibits "A ", "B" and "C" excess of the height of the security fence
described in Section 9.
22, NOTICES AND PAYMENTS
A. Ultigfa
All notices and demands, incidental to this Lease Agreement or the occupation
of the Property, must be in writing and shall be deemed validly given if sent by one party
to the other party, certified nail, return-receipt requested, and shall be effective 'upon
receive of the notice as evidenced by the return receipt, and shall be addressed as follows
(or any other address that the party to be notified may have designated to the sender by Dike
notice):
Tenant: Nextel South Corp.
6575 The Corners Parkway
Norcross, GA 30092
Attention; Property Manager
With a copy to Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, VA 22102
Attention: Legal De sartm.ent
'Lessor: City of Tybee - island, Georgia
403 Butler Avenue
P.G. Box 2749
Tybee Island, GA 31328.2749
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05/01/2003 14:27 FAX 919 465 6826 SPECTRASITE 0 014
B. Payments.
Rent shall be paid by cheek made payable to the City of Tybee island and
smiled or delivered to:
City of Tybee Island, Georgia
403 Butler Avenue
• P,0„ Box 2749
Tybce island GA 31328-2749
23, HEADINGS
The section headings contained in this Lease Agreement are for convenience
• only and shall not be considered in the construction Of interpretation of any provision
hereof.
24. LEASE AGREEMENT BINDING ON IfEIRS, SUCCESSORS, ETC.
All of the term% covenants rights, liabilities and conditions of this Lease
Agreement shall extend to and bind the respective heirs, personal representatives, successors
and assigns of the patties hereto.
IN WITNE,SS THEREOF, the parties hereto have caused this lease to be duly
executed as of the day and year first above written.
CITY OF TYBEE ISLAND, GEORGIA
•
41,
"1.
NEXtEL SOUTH CORP.
dr11111111111111**-
4114W 401
Its: 1?-.86-czN,tirt--
3,3
SpectraSite® /fin =_RICAN TOWER
VIA CERTIFIED MAIL, RETURN RECEIPT
ARTICLE NUMBER: 7160 3901 9849 2433 8924
City Of Tybee Island, Ga
P 0 Box 2749
Tybee Island, GA 31328 -2749
Re: Lease Agreement with Spectrasite and /or its affiliates, sublessors, subsidiaries and/or
predecessors in interest ( "Spectrasite)
Dear Valued Landlord:
We are pleased to inform you that on August 8, 2005, Spectrasite merged with American Tower.
Our combined company is poised to be the industry leader for wireless infrastructure solutions
with the largest site portfolio in the industry today, along with the best people, processes and
systems behind everything we do.
Please be advised that effective September 15, 2005, our notice address will change to:
AMERICAN TOWER
ATTN: LAND MANAGEMENT
10 PRESIDENTIAL WAY
WOBURN, MA 01801
All correspondence should be mailed to this address. After September 15, 2005, we cannot
ensure that a communication sent to any other address will be received by the proper
department. Therefore, we unfortunately cannot consider any communication sent to any other
address as being legally effective under our lease agreement with you.
Please be assured that the merger does not affect the terms of your lease agreement or our
contractual obligations to you. Should you ever have questions about your lease agreement, rent
payment, etc., please contact our Landlord Relations Depai Lauent at:
E -mail: Landlord .Relations@americantower.com
Toll -free: 1-866-586-9377
Fax: 1 -781- 926 -4555
Landlord Relations Specialists are available Monday -Friday during normal business hours to
assist you on all inquiries.
We are continuously striving to provide our landlords with `best in class' service and hope you
share in the excitement of becoming part of the American Tower family.
Sincerely,
American Tower Land Management 303430