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