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HomeMy Public PortalAboutCingular-Bellsouth-ATT Tower lease 4- 3C: -03; 4: OPt,1;Re , :>c•".tr ;44.4 7.49 4E:4 • • 410 -013 /T Tybee Island WATER TO WER ATTACEMEN OPTION AND LEASE AGREEMENT THIS WATER TOWER OPTION AND LEASE AGREEMENT ( "Agreement ") is entered into this je day of Octb-{ , 1997 by and between THE CITY OF TYBEE ISLAND, GEORGIA ( "Landlord "), and BELLSOUTH PERSONAL COMMUNICATIONS, INC., a Delaware corporation, d/b /a BellSouth Mobility DCS ( "Tenant "). PROPERTY Landlord is the owner of certain real property (the "Real Property ") located in the City of Tybee Island, Chatham County, State of Georgia, more particularly described in Exhibit "A" attached hereto and made a part hereof, and Landlord is the owner of the water tower situated thereon which is Located at latitude 32" 00' 39" and longitude 80° 50' 31" (the "Tower "). Tenant desires to obtain an option to lease a portion of the Real Property containing an approximately 35 foot by 35 foot tract of and (the "Ground Space "), together with certain positions on the Tower between the 125 and 135 foot levels on the Tower (or top available mounting bracket location) (collectively, the "Tower Space ") for the mounting of various antennas and related equipment, as such Ground Space is substantially shown on Exhibit "A -1" attached hereto and made a part hereof (if no Exhibit 'A -1" is attached, it shall be attached in the future and shall be mutually acceptable), together with nonexclusive easements and rights of way as are hereinafter described (the Ground Space, the Tower Space, and such easements are hereinafter collectively called the "Property "). OPTION NOW THEREFORE, in consideration of the sum of Five Hundred and No /100 Dollars ($500.00) (the "Option Money "), to be paid by Tenant to Landlord upon Tenant's execution of this Agreernert, Landlord hereby grants to Tenant the exclusive right and option (the "Option ") to lease the Property in accordance with the terms and conditions set forth herein. Option Period. The Option may be exercised at any time on or prior to December 15, 1997 (the "Option Period "). At Tenant's election, and upon Tenant's written notice to Landlord prior to expiration of the Option Period, the Option Period may be further extended for an additional period of three (3) months, through and including March 15, 1995, with an additional payment of Five Hundred and No1100 Dollars ($500.00) by Tenant to Landlord for the extension of the Option Period. The Option Period may be thereafter further extended by mutual agreement in writing. If Tenant fails to exercise the Option within the Option Period, as it may thereafter be extended as provided herein, the Option shall terminate, all rights and privileges granted hereunder shall be deemed completely surrendered, Landlord shall retain all money paid for the Option, and no additional money shall be payable by either party to the other. BellSouth/City of Tybee Island • 4- 3i:-0.' -.; 4:20Pwl; Fie i i sou h 457 - i • 4 Transfer of Option. The Option may be sold, assigned, or transferred at any time by Tenant to Tenant's parent company or any affiliate or subsidiary of, or partner in, Tenant or its parent company or (with the prior written consent of Landlord) to any third party agreeing to be subject to the terms hereof. Otherwise, the Option may not be sold, assigned or transferred without the written consent of Landlord; such consent not to be unreasonably withheld, conditioned, or delayed. From and after the date the Option has been sold, assigned or transferred by Tenant to a third party agreeing to be subject to the terms hereof, Tenant shall immediately be released from any and all future liability under this Agreement, including the payment of any rental or other sums due, without any further action. Changes in. Property During Option Period.. If during the Option Period or any extension thereof, or during the term of this Agreement if the Option is exercised, Landlord decides to subdivide, sell or change the status of the zoning of the Real Property, Landlord shall immediately notify Tenant in writing. Any sale of the Real Property shall be subject to Tenant's rights under this Agreement. Landlord agrees that during the Option Period or any extension thereof, or during the term of this Agreement if the Option is exercised, Landlord shall not initiate or consent to any change in the zoning of the Real Properly or impose or consent to any change in the zoning of the Real Property or impose or consent to any other restriction that would prevent or limit Tenant from using the Property for the uses intended by Tenant as hereinafter set forth in this Agreement. • Title. Landlord warrants that (i) it has full right, power, and authority to execute this Agreement; (ii) it has good and unencumbered title to the Real Property and the Tower free and clear of any liens or mortgages; and (iii) the Ground Space may be leased without the need for any subdivision or platting approval. Landlord further represents and warrants that Tenant's intended use of the Real Property and the Tower as a site for the transmission and receipt of radio communication signals; for the construction and maintenance of related facilities, towers, antennae or buildings; and for related activities is not prohibited by any covenants, restrictions, reciprocal easements, servitudes, subdivision rules or other requirements or regulations which would prohibit Tenant's intended use of the Property, including the Tower Space, nor are there any easements, or other encumbrances on the Real Property or the Tower which will interfere with or constructively prohibit Tenant's intended use of the Property, including the Tower Space. Insoections Landlord shall permit Tenant during the Option Period, and any extension thereof, free ingress and egress to the Real Property and the Tower by Tenant and its employees, agents and contractors to conduct structural strength analyses, subsurface boring tests, radio frequency tests and such other tests, investigations and similar activities as Tenant may deem necessary, at the sole cost of Tenant. Tenant and its employees, agents, and contractors shall have the right to bring the necessary vehicles and equipment onto the Real Property to conduct such tests, investigations and similar activities. Tenant shall indemnify and hold Landlord harmless against any loss or damage for personal injury and physical Be115oU W07 or iWt hW4 2 . . ; -,.5 4E3- • • • damage to the Real Property or the Tower, or the property of third parties resulting from any such tests, investigations and similar activities. Surveys. Landlord also hereby grants to Tenant the right to survey the Real Property or portion thereof, and the legal description of the Real Property, Property and Ground Space on the survey obtained by Tenant shall then become Exhibit "B ", which shall be attached hereto and made a part hereof, and shall control in the event of discrepancies between it and Exhibits "A" and "A -1 ". Governmental Approvals, Tenant's ability to use the Property and the Tower is contingent upon its obtaining all certificates, permits, and other approvals and its compliance with all applicable laws, ordinances, rules or regulations that may be required or unposed by any federal, state or local authorities, including without limitation, the Federal Communications Commission ( "FCC ") and the Federal Aviation Administration ( "FAA "). If requested by Tenant, any such applications may be filed with respect to, not only the Property, but also the Real Property and the Tower. Tenant will perform all other acts and bear all expenses associated with any zoning or other procedure necessary to obtain any certificate, permit, license or approval for the Property or the Tower deemed necessary by Tenant. Landlord agrees to cooperate with Tenant, at Tenant's expense, in its efforts to obtain and maintain in effect all certificates, permits, licenses, and other approvals required by governmental authorities and with Tenant's efforts to comply with all legal and regulatory requirements related to Tenant's use of the Property and the Tower. Utility Services During the Option Period, and during the term of this Agreement if the Option is exercised, Landlord shall cooperate with Tenant in Tenant's effort to obtain utility services along the utility easement contained in the Property by signing such documents or easements as may be required by the utility companies. In the event any utility company is unable to use the utility easement, Landlord hereby agrees to grant an additional easement and right of way either to Tenant or to the utility company at no cost to Tenant or to the utility company. Exercise of Option.. Tenant shall exercise the Option, if at all, by written notice to Landlord in accordance with the notice provisions herein. On and after the commencement date set forth in such notice, which date must occur prior to the expiration of the Option Period (the "Commencement Date "), this Agreement shall also constitute a lease agreement between Landlord and Tenant on the terms and conditions set forth in this Agreernent. LEASE AGREEMENT 1. Property. Subject to the foliowing terms and conditions, Landlord leases to Tenant the Property, which lease includes the grant of a nonexclusive right of ingress and egress for access and utilities to the Property, a nonexclusive easement over and across such portions of the Tower for the placement of coaxial transmission lines or cables as may be sait$o.tt telly of Tybeo Ist,m i 3 4:ZOPM;FiP. ;.0 IIn 4F.i • • • ' • a , • necessary for Tenant's intended use of the Property, a nonexclusive easement to erect and maintain such protective barriers around Tenant's Communications Equipment as may be required by applicable laws or regulations or desirable by Tenant. 2. Use. A. The Property may be used by Tenant for the transmission and receipt of radio convnunicatian and maintenance of related facilities, towers, antennae, or buildings, and related activities. Landlord agrees to cooperate with Tenant in obtaining, at Tenant's expense, the Governmental Approvals. Tenant shall be responsible for obtaining and furnishing proof of approvals for construction of its equipment and installation of the Communications Center, as that term is hereinafter defined, from the FAA and the FCC if such approvals are necessitated, prior to the commencement of construction or operations by Tenant on the Property. B. Communications Equipment: Landlord hereby grants permission to Tenant to install and operate the following and associated equipment on or in the Property: (1) Lip to six (6) antennas with the antennae at a permanent location in the Tower Space. The exact location of antennas between the aforesaid levels shall be supplied to Landlord in the form of proposed construction drawings and specifications prior to installation or construction; no alteration thereafter shall be made without prior written approval and acceptance by Landlord; however, such approval not to be unreasonably withheld. A complete set of as built drawings will be furnished to the Landlord following construction; (2) Flexible coaxial transmission lines between antennas and cellular communications equipment shall be anchored and installed on the Tower in accordance with good and accepted engineering practices; (3) Radio communications equipment shelter consisting of transmitter, receiver and accessories to be installed near the base of the Tower in the area designated as the Ground Space; (4) Emergency gasoline, diesel or other fuel powered generator to be located on the Ground Space adjacent to the equipment shelter and to be used at Tenant's option, but in most cases only in the event of power failure; and (5) At Tenant's option, a mobile tower cell on wheels ( "COW ") to be installed on the real property of Landlord on a non permanent basis until the completion of the Replacement Tower (as defined herein), if any, and the relocation of Tenant's antennae, cables, wires, accessories, and related equipment to the Replacement Tower. The specific location of the COW shall be substantially as shown on "Exhibit A -2" or such other location Bal)ScathwClry ar 7ybee lstind 4 4:2OPM :Re ;4 " :4 43 46 - • • mutually acceptable to Tenant and Landlord. If Tenant installs a COW, .Landlord acknowledges and agrees that the COW, and Tenant's use thereof, will involve such antennae, cables, wires, and related equipment as Tenant shall deem necessary for Tenant's intended use of the real property on which the COW is located, ,Landlord hereby grants Tenant such nonexclusive easements for access, installation, maintenance and utilities as may be reasonably necessary for Tenant's use of the COW. Tenant shall also have similar rights of ground space as is contemplated for the Ground Space adjacent to the Tower, in which Tenant can operate the COW and related equipment. The parties understand and acknowledge that because of the significant delays between the contemplated removal of the Tower and the completion of the Replacement Tower, the use of the COW may be the most viable option for Tenant's initial operation under this Agreement. Tenant shall enjoy the same rights of access and use with respect to the COW as it otherwise does with respect to this Agreement for the initially contemplated Tower location. It is the intention of the parties that if Tenant uses the COW rather than, or in conjunction with, the Tower, to best coordinate its transfer to the Replacement Tower and to best minimize "down time" prior to the completion of the Replacement Tower, Tenant shall enjoy the rights and privileges, granted hereunder, to the full extent applicable, with respect to its operation. of the COW. (For the purpose of this Agreement, all of Tenant's equipment, building, panels, generator, cables, wires, antennae, and accessories and, if installed, the COW, shall hereinafter collectively be referred to as "Communications Equipment" or "Communications Center ".) 3, Access. Landlord agrees that during the Initial Term of this Agreement or any Renewal Term as is hereinafter provided, Tenant shall have reasonable ingress and egress on a 24 -hour, 7 days per week basis to the Property and the Tower for the purposes of maintenance, installation, repair and removal of said Communications Equipment. It is agreed, however, that only authorized engineers or employees of Tenant, or persons under Tenant's direct supervision, will be permitted to enter the Property or the Tower to install, remove and repair Tenant's Communications Equipment, Tenant is responsible for the cost of such activities and will notify Landlord in advance of its need to install or repair its Communications Equipment located on the Tower; EMEn in the case of an emergency whereupon notification shall be given,as soon as reasonably possible. 4. Term. The term of this Agreement shall be five (5) years, commencing upon the Commencement Date (as defined herein) and terminating at midnight on the fifth (5th) anniversary of the Commencement Date ( "Initial Term "). Provided Tenant is not then in default, Tenant shall have the right, but not the obligation, to extend this Agreement for three (3) additional five (5) year terms ( "Renewal Terms "). Each Renewal Term shall be on the same terms and conditions as set forth in this Agreement except that the Rent shall be increased at the inception of each Renewal Term as specified in paragraph 5.C. This Agreement shall automatically be renewed foe each successive Renewal Term unless Tenant notifies Landlord of Tenant's intention not to renew the Agreement at least 30 days prior to the expiration of the Initial Terns or the Renewal Term which is then in effect. adISomh Cit7 cf'iybet IalaM 5 r ^.t - t • • • • • 5. Rent. A. Upon the Commencement Date, Tenant shall pay Landlord the suin of One Thousand Two Hundred Fifty and No /100 Dollars ($1,250.00) per month as rental ('Rent "), Rent shall be payable on the first day of each month in advance to Landlord at Landlord's address as specified in Paragraph 19 below. B. If this Agreement is terminated at a time other than on the last day of a month, Rent shall be prorated as of the date of termination, and in the event of termination for any reason other than nonpayment of Rent, all prepaid Rents shall be refunded to Tenant. • C. in the event this Agreement is renewed as provided for in paragraph 4 herein, the rent due in each Renewal Term shall be as follows: (I) Rent due in the first Renewal Term shall be One Thousand Five Hundred Sixty -Two and No /100 Dollars ($1,562.00) per month; (ii) Rent due in the second Renewal Term shall be One Thousand Nine Hundred Fifty-Three and No /100 Dollars ($i.,953.00); and (iii) Rent due in the third Renewal Tenn shall be Two Thousand Four Hundred Forty -One and. No /100 Dollars ($2,441.00). 6. Tgnant's Representations and Warranties. Tenant covenants and agrees that Tenant's Communications Equipment, its installation, operation and maintenance shall: A. Not irreparably damage the Tower and accessories thereto; B. Not interfere with the Landlord's operation of the Tower. In the event there is interference by Tenant, Tenant will promptly take all steps necessary to correct. and eliminate the same within a reasonable period of time. If Tenant is unable to eliminate such interference mused by it within a reasonable period of time, Tenant agrees to remove its antennas from Landlord's property and this agreement shall terminate. Interference shall include any damage to the Tower, its operations or to the water maintained for storage contained within the tank, Tenant agrees that it shall be fully and completely responsible for any and all damage to the stored water, to the tank and to the Tower and all support systems in its placement of its property on Landlord's property. Any contamination of Landlord's stored water, arising from Tenant's operations, or those of Tenant's agents, employees, contractors or invitees, shall be the sole responsibility of Tenant to correct; and C. Comply with all applicable rules and regulations of the FCC and electrical codes of the City and State concerned. BcasautWCk c i T ?sbou! 6 • • 4:20 ;P,E?I IsoJLri ;1C :4 249 4F:, r< e• • • , 7. Landlord's Representations and Warranties. A. Landlord represents and•warrants that Tenant's intended use of the Property as a site for the transmission and receipt of radio communication signals; for the construction and maintenance of related facilities, towers, antennae or buildings; and for related activities is not prohibited by any covenants, restrictions, reciprocal easements, servitudes, subdivision rules or other requirements or regulations which would prohibit Tenant's intended use of the Property. Nor are there any easements or other encumbrances on the Property which will interfere with or constructively prohibit Tenant's intended use of the Property. B. Landlord represents and warrants that, if constructed, the Replacement Tower (as defined herein will have adequate existing structural support and integrity to support Tenant's Communications Equipment, with the exception of the COW, Landlord shall maintain and repair the Replacement Tower and the Tower during the Initial Term and any Renewal Term of this Agreement in compliance with all applicable laws and regulations and in satisfactory condition. Landlord shall maintain the Replacement Tower, the Tower, and Real Property as a controlled environment not open to the general public. 8. Abatement of Rent. If the Tower is damaged for any reason so as to render it substantially unusable for Tenant's use, rent shall abate for such period as the Tower is substantially unusable for Tenant's use. If Landlord, at its expense, fails to repair or restore the Tower to its condition prior to such damage, Tenant may either terminate this Agreement upon written notice to Landlord or repair or restore the Tower at Tenant's expense. 9, Non - Exclusive Aareepent. This Agreement shall be nonexclusive and Landlord may grant a similar lease to any other party. Landlord will not, however, grant such a similar lease if such grant will in any way adversely affect (which adverse affect shall relate to the operation at, and the use and enjoyment of, the Property and shall not relate to competitive affects) or interfere with Tenant's use of Tenant's Communication Equipment. Tenant shall not materially change the frequency, ' power or character of-its equipment without first obtaining the written consent of Landlord, which shall not be unreasonably withheld, conditioned or delayed. 10. Conditions Precedent. Tenant's obligation to perform under this Agreement shall be subject to and conditioned upon Tenant securing appropriate approvals for Tenant's intended use of the Property from the FCC, the FAA, and any other federal, state or local regulatory authority having jurisdiction over Tenant's proposed use of the Property. Tenant's inability to successfully satisfy these conditions or the occurrence of any other event which effectively prohibits Tenant's intended use of the Property shall relieve Tenant from any obligation to perform under this Agreement (except for indemnity obligations previously incurred and Tenant's obligation to remove the Conummications Equipment or any other 9entroutluCi y orTybrx island 7 + _mil. - V.S, - ..tUPM; I-f ^I 5U lift :4.C$ '=43 -tai .. . 1 • • personal property) and shall entitle Tenant to restitution of any prepaid monthly rental payments which have been paid to Landlord. 11, Conditions Subsequent. In the event .that Tenant's intended use of the Property is actually or constructively prohibited, then this Agreement shall terminate and be of no farther force or effect (except for indemnity obligations previously incurred and Tenant's obligation to remove its Communication Equipment or any other personal property) and Tenant shall be entitled to a refund from Landlord of any prepaid Rents or deposits paid to Landlord prior to the date upon which Tenant gives Landlord notice of its intent to terminate this Agreement pursuant to this paragraph, 12. Interference. Landlord shall not use, nor shall Landlord permit its lessees, licensees, invitees or agents to use any portion of Landlord's Real Property or Tower in any way which interferes, based on generally accepted engineering and telecommunications standards, with the operations of Tenant described In Section 2 above. Such interference shall be deemed a material breach of this Agreement by Landlord and Landlord shall have the responsibility to promptly terminate said interference. In the event any such interference does not cease or is not promptly rectified, Landlord acknowledges that continuing interference will cause irreparable injury to Tenant, and Tenant shall have the right, in addition to any other rights that it may have at law or in equity, to bring action to enjoin such interference or to terminate this Agreement immediately upon notice to Landlord. With respect to any further lessees, licenses, invitees or agents of any portion of Landlord's Real Property or Tower, Landlord shall make all reasonable efforts to include in its agreement with said third -party that such third -party prevent any interference with Tenant's operations. 13. Termination. Except as otherwise provided herein, this Agreement may be terminated, without any penalty or further liability (except for indemnity obligations previously incurred and Tenant's obligation to remove its Communications Equipment or any other personal property) on 30 days' written notice if either of the following conditions should apply: A. Upon a default of any covenant or term hereof by the other party which default is not cured within 30 days of receipt of written notice or default (without, however, limiting any other rights available to the parties pursuant to any other provisions hereof); B. If Tenant is unable to obtain or maintain any license, permit or other Governmental Approval necessary to the construction and operation of the Communications Center or Tenant's business; or C. By Tenant for no reason or any reason at all upon providing six (6) months advance written notice to Landlord. • BcfSouthICity of Tybce klat,il 8 , • • 4- 3C -03; 4 :2OPM ;R I Is0u1rh C4 249 493- 0 1 • 4 • 14. Subleases. After first obtaining the written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed, Tenant shall have the right to sublease the Property or any portion thereof to others whose primary business is the provision of radio transmission and communication services. Tenant's sublessee(s) shall be entitled to rights of ingress and egress to the Property and the right to install utilities on the Property as if said sublessee were the Tenant under this Agreement, If and to the extent required under applicable law, any rents received by Tenant from any sublessee(s) in excess of the Rent paid by Tenant hereunder shall be Landlord's. It is understood that Landlord is concerned that under applicable law, a tenant leasing property from a governmental entity may not be entitled to financial profits in the subleasing of portions of that property, and Landlord and Tenant agree that they wish to conform this Lease to applicable law, Until such time as it is determined that such subleasing excess rents are an impermissible profit for Tenant, Tenant and Landlord shall share such excess rents evenly (i.e. 50 -50). Immediately upon the determin tion by a court of competent jurisdiction or similar authority that Tenant is not entitled to such excess rents, such excess rents shall be paid to Landlord by Tenant, to the extent actually received. 15, 'Imes. Tenant shall pay any personal property taxes assessed on, or any portion of such taxes attributable to, the Communications Center. Landlord is exempt from any obligation to pay real property taxes on the Real Property and the improvements owned by Landlord which are located thereon. 16. Insurance. Tenant shall, at Tenant's expense, purchase and maintain in full force and effect throughout the term including any renewals or extensions thereof, such public liability and property damage policies as Tenant may deers necessary. Said policy or policies will provide a minimum combined single limit of $1,000,000 and will name Landlord as additional insured. 17, Destruction of Premises. If the Property or the Communications Equipment are destroyed or damaged so as to hinder the effective use of the Communications Equipment in Tenant's judgment, Tenant may elect to terminate this Agreement as of the date of the damage or destruction by so notifying the Landlord, In such event, all rights and obligations of the parties shall cease as of the date of the damage or destruction (except for indemnity obligations previously incurred and Tenant's obligation to remove its Communications Equipment or any other personal property) and Tenant shall be entitled to the reimbursement of any Rent prepaid by Tenant. 18. Environmental Compliance. Landlord represents and warrants that, to the best of Landlord's knowledge, the Real Property and the Tower are in compliance with alt laws, ordinances, notices, order, rules, regulations and requirements of any and all federal, state, or municipal governments or their appropriate departments, commissions, boards and offices thereof. Henson cry or'rybee tala,xl 9 • -- :2OPM;E.e{ Is( utn ;-a(4 24F. 4r,; • • • I . Tenant shall have the right to conduct an environmental audit of the Real Property and the Tower at Tenant's expense, Tenant shall not be obligated to take possession of the Property under this Agreement if the environmental audit reveals that the Real Property and the Tower contains contaminants, oils, asbestos, radon, PCB's, hazardous substances or hazardous wastes as defined by federal, state or local environmental laws, regulations or orders or other materials the removal of which are required or the maintenance of which is prohibited, regulated or penalized by any federal, state or local government authority ( "Hazardous 1vlaterials "). 19. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by a nationally recognized overnight courier for next -day delivery or mailed, certified mail, return receipt requested, to the following addresses: If to Landlord, to: City of Tybee Island, Georgia P. 0. Box 128 Tybee Island, Georgia 31328 (912).786-4571 City of Tybee Island, Georgia 403 Butler Avenue Tybee Island, Georgia 31328-2749; If to Tenant. tQ: BellSouth Personal Communications 3353 Peachtree Road, N.E., Suite 300 Atlanta, Georgia 30326 Attention: Real Estate Department With a copy to: BellSouth Personal Communications 3353 Peachtree Road, N.E., Suite 400 Atlanta, Georgia 30326 Attention: Legal Department • 6onsouth/Cfry or7ybee Ularsl 10 4 —R —C.',: 4:'e 0!�✓I, °:2!I�OUP: :4C4 24a 4E # I • • • • 20. Title and Quiet Enjoyment. A. Landlord warrants that (1) it has full right, power, and authority to execute this Agreement; (ii) it has good and unencumbered title to the Real Property and the Tower free atxi clear of any liens or mortgages; (iii) the Real Property constitutes a legal tot that may be leased without the need for any subdivision or platting approval, and (iv) that Tenant shall have the quiet enjoyment of the Property, the Real Property (to the extent is has rights hereunder to the Real Property) and the Tower during the term of this Agreement. B. Tenant has the right to obtain a title report or commitment for a leasehold title policy from a title insurance company of its choice. If, in the opinion of Tenant, such title report shows any defects of title or any liens or encumbrances which adversely affect Tenant's use of the Piui,erty or Tenant's ability to obtain leasehold financing, Tenant shall have the tight to cancel this Agreement immediately upon written notice to Landlord. C. Tenant shall also have the right to have the Real Property surveyed and to have soil borings and analysis tests run. In the event that any defects are shown by the survey or the soil analysis, which in the opinion of the Tenant, may adversely affect Tenant's use of the Property, Tenant shall have the right to cancel this lease inmiediately upon written notice to Landlord. 21. Assignment. Any assignment of this Agreement that is entered into by Tenant shall be subject to the provisions of this Agreement. Additionally, Tenant may, upon notice to Landlord, mortgage or grant a security interest in the Communications Center, and may assign the Communications Center to any such mortgagees or holders of security interests including their successors and assigns. 22, Indemnification. Tenant shall indemnify, protect, save and hold harmless Landlord and the directors, officers, employees, agents and volunteers of Landlord, (for the purposes of this paragraph, collectively '"Landlord "), from and against any and all claims, demands, judgments, set -offs, losses, damages, liabilities, awards, fines-and expense, including without limitation, the concurrent negligence of Landlord and the Tenant, the contributing negligence of the Tenant and any third party, and any attorney's fees, expenses or other costs associated with or incurred, based on or in any mariner arising out of or related to, the performance or nonperformance of this Agreement by the Tenant hereunder, including but not limited to, injury to persons or property, actual damages, consequential damages, punitive damages, losses, set -offs, warranty claims, product liability claims or other damages arising out of an action for strict liability in tort; provided, however, that nothing contained in this provision shall be interpreted to indemnify or hold harmless Landlord 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 Landlord, and Landlord shall indemnify, protect, save and hold harmless Tenant against liability for damages arising out of bodily rl:IlSoutWCitr of ybe tsla+d 11. 4— Ante -0.3: :20PM :Ei 1 ! sour ;4,.4 249 443 • • • injury to persons or damage to property caused by or resulting from the sole negligence or willful misconduct of Landlord. Without limiting the foregoing indemnity, the Tenant shall indemnify the Landlord for all defense costs, including reasonable attorney's fees, and amounts paid in settlement. 23. Successors and Assigns. This Agreement shall run with the Real Property. This Agreement shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. 24. Miscellaneous. A. Each party agrees to furnish to the other, within 10 days after request, such truthful estoppel information as the other may reasonably request. B. This Agreement constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to said Agreement must be in writing and executed by both parties. The foregoing statements of this Section 24(B) relate only to this Agreement, and the transaction contemplated herein, and in the event that Landlord and Tenant (or any affiliates of either) are panties to any separate agreement for transactions unrelated to this Agreement, such separate agreements shall in no way be affected by this Agreement. C. If either is represented by a real estate broker in this transaction, that party shall be fully responsible for any fee due such broker and shall hold the other party harmless from any claims for commission by such broker. D. Landlord agrees to cooperate with Tenant in executing any documents necessary to protect Tenant's rights under this .Agreement or Tenant's use of the Property and to take any further action which Tenant may reasonably require as to effect the intent of this Agreement. E. This Agreement shall be construed in accordance with the laws of the State of Georgia. F. If any term of this Agreement is found to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. G. Following the execution of this Agreement, either party, at its sole expense, shall be entitled to file a memorandum or short form of lease of record in the County where the Property is located. 6ellSauttdC4ty or lane 12 • • 4- 3C -Oa: 4:2OPM:Bp Isoutrl ,4C4 24R 46 # -4 iF • • a } H. This Agreement, if Tenant exercises the Option, grants to Tenant a leasehold estate and not merely a usufruct. I. Title to all improvements constructed or installed by Tenant on the Real Property or the Tower shall remain in Tenant, and all improvements constructed or installed by Tenant shall at all times be and retrain the property of Tenant, regardless of whether such improvements are attached or affixed to the Tower or the Real Property. Tenant, upon termination of this Lease, shall, within a reasonable period, remove its improvements from the Tower and the Real Property. 25. Replacement Tower, Landlord and Tenant acknowledge that Landlord intends to construct a spherical water tower to replace the existing Tower (the "Replacement Tower "). Landlord indicates that it tentatively anticipates the completion of the Replacement Tower by October 1998. The Replacement Tower may be constructed so as to permit Tenant's use of the Real Property and Replacement Tower for the purposes intended by Tenant herein and the potential use of the Replacement Tower by other communications carriers. Once the Replacement Tower is completed, references to the "Tower" herein will be deemed to refer to the Replacement Tower. To the extent necessary, the Ground Space, Tower Space, and easements related hereto will be modified upon the completion of the Replacement Tower, All such modifications shall be mutually satisfactory to Landlord and Tenant. Further, all exhibits to this Agreement shall be revised to the mutual satisfaction of Landlord and Tenant, upon the completion of the Replacement Tower, to correctly reference the Property Ieased. If the Replacement Tower is constructed to accommodate the use of the Replaeernent Tower by Tenant and other communications carriers, Tenant agrees to reimburse Landlord for Tenant's prorate share of the difference between (i) the costs Landlord would have incurred to construct the Replacement Tower without accommodating the use thereof by Tenant or other communications carriers, and (ii) Landlord's reasonable, actual costs to construct the Replacement Tower with the upgrades necessary to accommodate the use thereof by Tenant or other communications carriers. For example, if the Replacement Tower without such upgrades would have cost Landlord $70,000 to construct, and the Replacement Tower with such upgrades actually costs Landlord $90,000, Tenant would pay its prorate share of $20,000. Tenant's prorate share shall be based on the projected number of users of the Real Property and Replacement Tower, which projected number shall be mutually agreed upon by Landlord and Tenant, based upon their best -guess estimations of the likely number of future users. If Tenant determines that its prorate share is excessive, in its sole discretion, Tenant may without waiving any other right or remedy, terminate this Agreement effective immediately upon written notice to Landlord. If Tenant terminates this Agreement as provided in the previous sentence, Landlord agrees to cooperate in good faith with Tenant in Tenant's efforts to relocate to such other site owned by Landlord that is suitable for Tenant's intended use, under terms and conditions substantially similar to this Agreernent. BeltScuds/City of Tyber Islam 13 , • 4- . , .0 -C) ?; 4:20PM :RI Isc,. :4C4 ?-9 .4r'7 # i° t- 4110 . 103612779441297361 1036129736& • DATED AS OF THE DATE FIRST SET FORTH ABOVE. LANDLORD Signed, sealed and delivered this THE CITY OF TYBEE ISLAND, GEORGIA day of"' 1991 in the presence of By: ..1' ..■".,i%.‘. .-4. ,Ir" � r'f glut Print Name: _(g � 1,-I- ' � ark a r" . . ;� Title: Mayor Unofficial Witness ATTEST: " ali t c? ...„... , .,: ,.. :c - . _ ,_ , ...., - - ,, . .... Tit; Cl- of ouncil ' '; , ' -. Y - - , 1 \ L r _ . Notary Public - ? - My Coot'.V,HARes: - Joitily Public, Chatham My commission Expii s 7 County, E "1999 (NOTARIAL SEAT..) . ' • TENANT: ,, ~ - BELISOUTH PERSONAL COMMUNICATIONS, INC., a Delaware corporation, dibla BelIS'uth Mobility DCS Si ned, sealed and delivered this / ( , � day of �C � By: I. w i J � �f rf 199 •,, in the presence of: Name: M . Se,;, A 44 r ," Title: l . ' , ! w ,„ �.. ,.. /�G r Unofficial Witness ATTEST: By:. /.444-L ,i,- ;j I/ t Title: as�- 5vri?o, � Notary blic • My CO Expires: • . ' 41y +o - - no a; - • 14 ee cingular .,.ti Via Certified Mail, Return Receipt Requested Tracking Number 7003 2260 0005 4789 3400 December 27, 2005 City of Tybee Island, GA PO Box 2749 Tybee Island, GA 31328 Subject: Notice of First Amendment for City of Tybee Island, GA Site: 410 -013 Dear Lessor: Pursuant to the First Amendment to Water Tower Attachment Option and Lease Agreement for the aforementioned site, this letter will serve as notification that effective January 1, 2006 we will be changing the annual base to $12,000.00. As the rent payment for January 2006 has already been mailed to you, a credit of $562.00 currently exists on the account. Therefore, your February rent payment will be in the amount of $438.00. The new rent amount of $1,000.00 will be reflected on the next monthly payment following this date. If you have any questions or concerns, please contact this department on our toll free number, 1- 877- 231 -5447. Please reference on all communications the site name as found on the subject line of this letter to expedite processing of your request. Sincerely, Melodie Wade Real Estate Manager Cingular Wireless Enclosures ( 1) cc: Cingular Wireless Project Manager File MW /jh Cingular Wireless • 6100 Atlantic Blvd • Norcross, GA 30071 • www.cingular.com Cell Site No: 410 - 43 42339 Site Address: 211 Butler Avenue, Tybee Island, GA 31328 FIRST AMENDMENT TO WATER TOWER ATTACHMENT OPTION AND LEASE AGREEMEN THIS FIRST AMENDMENT TO WATER TOWER ATTACHMENT OPTION AND LEAS AGREEMENT ( "Amendment ") dated as of the date below, by and between The City of Tybee Island, Georgi having a mailing address at P.O. Box 2749, Tybee Island, GA 31328 (hereinafter referred to as "Landlord ") an a� New Cingular Wireless PCS, LLC, a Delaware limited liability company, successor in interest to BellSou e Personal Communications, Inc., a Delaware corporation, d/b /a BellSouth Mobility DCS, having a mailin; address at 6100 Atlantic Boulevard, Norcross, Georgia 30071 (hereinafter referred to as "Tenant "). WHEREAS, Landlord and Tenant entered into a Water Tower Attachment Option and Lease Agreement ( "Lease ") dated October 10, 1997; whereby Landlord leased to Tenant certain Premises, therein described, that are a portion of the Property located at 211 Butler Avenue, Tybee Island, GA 31328 ( "Agreement "); and WHEREAS, Landlord and Tenant desire to amend the terms of the Agreement; and WHEREAS, Landlord and Tenant desire to modify, as set forth herein, the Rent payable under the Agreement; and WHEREAS, Landlord and Tenant desire to modify, as set forth herein, the Tenant's obligations to pay Rent to Landlord for a Rent Guarantee Period; and WHEREAS, Landlord and Tenant, in their mutual interest, wish to amend the Agreement as set forth below accordingly. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Landlord and Tenant hereby agree as follows: '1 I 1. Term. All references to the Term of the Agreement shall be amended to provide that the Agreement has a Term of 60 months ( "Initial Term "), commencing on January 1, 2006. The Term will be automatically renewed for up to 5 additional 60 month terms (the "Extension Tenn") without further action by Tenant for additional periods of 60 months. 2. Termination. After the Rent Guarantee Period, Tenant may terminate the Agreement at any time with 30 days prior written notice to Landlord; provided, that Tenant pays to Landlord an amount equal to 12 months of the then current Rent. 3. Modification of Rent. Commencing on January 1, 2006, the Rent payable under the Agreement shall be $1,000.00 monthly, and shall continue during the Term, subject to adjustment as provided below. Notwithstanding the foregoing, nothing herein shall be deemed to modify the additional rent derived from any and all subleases under the provisions of paragraph 16 of the Agreement. Landlord Initial: / Tenant Ini::1: i` 4. Modification t Tenant's Obligation to Pay - Rent Guarantee. Notwithstanding Tenant' obligations to pay Rent set forth under the Agreement, for a 72 month period commencing January 1, 2006 an ending December 31, 2011 ( "Rent Guarantee Period "), Tenant hereby agrees that Tenant will be obligated t i pay Rent due and such obligation will not be subject to offset or termination by Tenant. 5. Future Rent Increases. The Agreement is amended to provide that commencing on January 1 2011, Rent shall be increased by 12.00% and every 5 years thereafter by 12.00% of the then current Rent. 6. Notices. Section 19 of the Agreement is hereby deleted in its entirety and replaced with the following: NOTICES. All notices, requests, demands and communications hereunder will be given by first class certified or registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to be effective when properly sent and received, refused or returned undelivered. Notices will \ be addressed to the parties as follows: As to Tenant, New Cingular Wireless PCS, LLC, c/o Network Real Estate Administration, Cell Site # 10017258, Cell Site Name 410 -013, 6100 Atlantic Boulevard, Norcross, 1 Georgia 30071, with a copy to Cingular Wireless Attn.: Legal Department, Re: Cell Site # 10017258, Cell Site Name 410 -013, 15 East Midland Avenue, Paramus, NJ 07652; and as to Landlord, P.O. Box 2749, Tybee Island, GA 31328. Either party hereto may change the place for the giving of notice to it by thirty (30) days prior written notice to the other as provided herein. 7. Acknowledgement. Landlord acknowledges that: 1) this Amendment is entered into of the Landlord's free will and volition; 2) Landlord has read and understands this Amendment and the underlying Agreement and, prior to execution of the Amendment, was free to consult with counsel of its choosing regarding Landlord's decision to enter into this Amendment and to have counsel review the terms and conditions of the I Amendment; 3) Landlord has been advised and is informed that should Landlord not enter into this Amendment, the underlying Agreement between Landlord and Tenant, including any termination or non - renewal provision therein, would remain in full force and effect. 8. Other Terms and Conditions Remain. The Lease is amended to incorporate all the provisions set forth on Schedule I attached hereto. In the event of any inconsistencies between the Agreement, and this First Amendment, and the provisions set forth on Schedule I, the terms of this First Amendment and Schedule I shall I I control. Except as expressly set forth in this First Amendment, the Agreement otherwise is unmodified and remains in full force and effect. Each reference in the Agreement to itself shall be deemed also to refer to this First Amendment. 9. Capitalized Terms. All capitalized terms used but not defined herein shall have the same meanings as defined in the Agreement. [NO MORE TEXT ON THIS PAGE - SIGNATURES TO FOLLOW ON NEXT PAGE] ff � Landlord Initi. i t Tenant Initial: IN WITNESS WHEREOF, the parties have caused their properly authorized representatives t execute and seal this Amendment on the date and year below. LANDLORD: TENANT: The City of Tybee Island, Georgia New Cingular Wireless PCS, LLC, a Delaware limited liability company By: / .1l -6-L, I� /. B d Name: k/ i A� rE I!V P4 t2 SCE Z Name: B. R. CATES Title: /-j) 4 i 6 R.-_ Title: EXEC DLR. - NETWORK Tax Id Date J 2 -1 'a- - oS WITNESSED BY: By: 1JC.,_J-k-e___ -.. _ By: 1 y' Name: S:(-4-AJE ------1 i /4 E ' Name: i Title: 0...-.J 'r 0.-,c_Ea44- Title: I i 1 '' 7 .t_,, j-1/1,■. c S.i ` L..- C ki att 1 1 SCHEDULE .1 TO • LEASE AMENDMENT Additional Lease Terms and Conditions The Agreement is amended to include the following terms and conditions: 1. Expansion of Permitted Use: Landlord hereby agrees, at the direction of Tenant, to allow the Tenant to modify, supplement, replace, upgrade, expand or refurbish the equipment related to the Communications Equipment, increase the number of antennas thereon or relocate the Communications Equipment and Tower within the Property at any time during the term of this Agreement, and Landlord shall cooperate with Tenant in all respects in connection with the foregoing. If Landlord does not comply with the terms ofthis section, Tenant may terminate this Agreement and shall have no further liability to Landlord. Landlord ' 0 -41 /6 0 5 e, Tenant Initial: �I - - - - -- -" c i n g u l a r - -__ -_ fits you best` December 17, 2003 CERTIFIED MAIL — RETURN RECEIPT REQUESTED CITY OF TYBEE ISLAND, GA Post Office Box 128 Tybee Island GA 31328 - Re: Cingular Wireless Site: 410 -013 Lease dated 10/10/1997 (the "Agreement ") Dear Lessor: Pursuant to the Notice section of our Agreement for the above - referenced site, please be advised that effective immediately, all notices, demands or correspondence should be addressed to the Lessee named in the Agreement and mailed to the address below: c/o Cingular Wireless Attn: Lease Administration 6100 Atlantic Boulevard Mail Code GANO2 Norcross, GA 30071 With a copy to: Cingular Wireless Attn: Legal/Real Estate 5565 Glenridge Connector, #1700 Atlanta, GA 30342 If you have any questions, please feel free to contact your Lease Specialist at our toll-free number, 877 - 231 -5447. Sincerely, Sharon Onorato 44-2N*Ar Director, Network Operations � //(4 jc- Cingular Wireless 6100 Atlantic Boulevard • GANO2 • Norcross, GA 30071