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HomeMy Public PortalAbout8-13-2009 Third Amendment to Lease- American TowersTHIRD AMENDMENT TO GROTIND LEASE AGREEMENT wr olt,1!0,i,., TflS TEIPJ AMENDMENT TO GROUND LEASE AGREENIENT (""Third Amer, is entered into as of the /3*h aay ot Q UQllSi ,2009 ("Effective Date,;), by and between The City of Tybee Islald, a municipal corpordt/on of the state of Georgia (hereinafter referred to as "Landlord') utd Spectrasite Communications, LLC, a Delaware limited liability company, (hereinafter refened to as "Tenanf). WITNESSETH: Landlord is the owner of that certain parcel of land (r}re "Property,') iocated in the County of Chatham, State of Georgi4 and Landlord, and Nextel South Corp., predecessor in interest to Tenant, entered into tlat certain Ground Lease Agreement dated December 11, 1997, (the "Agreemenf") as amended by that certain First Amendment to Ground Lease Agreement, by and between Landlord and Tower Asset Sub, LLC, predecessor in interest to Tenant, dated August 24, 2006, (the "First Amendment''), as amended by that certain Lease Amendment, by and between Landlord and Tenant, dated December 21,2007 (the "Second Amendment") (collectively, the "Lease"), whereby the Tenant leases a portion of the Property ("Premises"), together with any easements for ingress and egress and the installation and maintenance of utilities. all as set forth in the Lease (hereinafter coliectively the "Sire"). The Properf and Premises/Site are depicted in Exiibit A attached hereto. B. Landlord and Tenant desire to amend the terms ofthe Lease as provided herein. NOW, TIfiREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consi.deration, ttre receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: a- Eflective as of the Corrrencement Date (as defined below), Landlord hereby leases to Tenant an additional 480 square feet of land ("Additional A-rea'') contiguous to the Premises as designated on Exhibit B. Upon the Commencement Date, tlre Additional Area is hereby included in the Premises under tle Lease. Exhibit B may be replaced by Tenant with a survey depicting the actual legal description ofthe Premises and/or the Site. b. Landlord hereby grants to Tenant, its officers, agents. employees and independent contractors the right and privilege to enter upon the Property, Site, and/or the Additional Area at any time after the date ofthis Amendmenq to perform or cause to be performed test borings of the soil, environmental audix, sampling and/or tests, engineering studies and to sonduct a survey of the Property and./or the Site and the Additional Area. Landlord wili provide Tenant wi& any necessary keys or access codes to the Property if needed for ingress and egress. Landlord will not unreasonably interfere witi Tenant's use of the Property in conducting these activities. c. The "Commencement Date" shall be the earlier of: (i) the date Tenant notifies Landlord in w ting that Tenant elects to commence leasing the Additional Area; or (ii) the Rent Commencement Date, as defined below. d. The "Rent Commencement Date" is the earlier of: (i) the date that Tenant issues a v'ritten 'Notice To Proceed' to one of its actual or prospective licensees or subtenants Third Amendment to Ground Lease Agreement Tybee Island. GA 30i430 1- ComDound Expansion- e (i) Tenant entering into a binding agreement with a Customer for that Customer's occupation of a portion of the Additional Area and Tenant and such Customer obtaining all necessary certificates, permits, licenses, and other approvals that may be required by any federal, state, or Iocal authority for a Customer to occupy and operate on the Additional Area and Site; and (iD Tenant determining, at its sole discretion, that the status oftitle of Landlord as to the Additional Area is acceptable to Tenant; and (iii) Tenant determining at its sole discretion that the Additional Area, Site and Properly are clear of any hazardous substances, which include any material or substance which is or becomes defined as a hazardous substance, pollutant, or contarninant, subject to reporting, investigation, or remediation pursuant to any federal, state, or local governmental authority, and any oil, or petroleum products or their by-products. If any one of the above contingencies shall not be satisfied, then Tenant may, at any time prior to the Rent Commencement Date, in writing to Landlord, terminate this Section I in its entirety and this Section lshall then be null and void and ofno further force and affec! provided that the remainder of this Amendment will otherwise survive and continue in firll force and effect. 2. Landlord Consent. Landlord hereby consents and approves to the subleasing and/or licensing of the Site, or a portion thereof, and/or Tenant's facilities, by Tenant, to New Cingular Wireless PCS, LLC and its parents, subsidiaries, affiliates, successors and assigns ("AT&T Wireless'). AT&T Wireless shall be entitled to modiry the Premises and any facilities or structures thereon and to erect additional improvements on the Premises, including but not limited to, antennas, dishes, cabling, additional storage buildings or equipment shelters. 3. Notices. All notices or demands by or liom Tenant to Landlord, or Landiord to Tenaat, required under this Lease will be in writing and sent CJnited States mail postage pre-paid, certified with return receipt requested or by reputable national ovemight carrier service, transmit prepaid) to the other party at the addresses set forth below, as applicable, or to such other addresses as the parties hereto may, from time to time, designate consistent with this paragraph, with such new notice address being effective 30 days after receipt by the other par!. Notices will be deemed to have been given upon either receipt or rejection. Tybee Isiand. CA 303430 ("Customer") for the purpose of commencing the Customer's installation of equipment on all or a portion the Additional Area; or (ii) if no written Notice to proceed is issued, then the date that a customer which has entered into a license or sublease agreement with Tenant commences to install such Customer's equipment or other personal property at the Additional Area;, or (iii) 18 months after the Effective Date of tl.ris Amendment. The Rent Commencement Date shall be contingent on: f. Commencing on the Rent Commencement Date, the monthly rent payable under the Lease shall be increased by Six Hundred Seventy Five and No / 100 Dollars (3675.00) per month. Third Amendment to Grcund Lease Agreement Landlord: Tenant:American Tower 10 Presidential Way Wobum, MA 01801 Attn: Land Management Witl a copy to:American Tower I 16 Huntington Ave. Boston, MA 02116 Athr: Legal 4- Paragraph 7 of the Lease is hereby deleted and replaced by the following: Modification of Premises. Tenant, and its licensees and sublessees, without prior notice to or consent of l-a"atora, snutt have the right (i) to modify, replace or repair any facilities, utilities, equipment, structures, property or improvements ("Improvements") now or hereafter located on the Premises and (ii) to add additional Improvements on the Premises. Improvements include, but are not limited to towers, antennas, cabling, additional storage buildings, cabinets and shelters. Any provision of the Lease that requires additional consideration to be paid to Landlord for the modification or addition of any Improvements is null, void and ofno further force and effect. 5. Aoprovals. Without limiting any of Tenant's other rights under the Lease, Landlord shall cooperate with Tenant, at no out-of-pocket expense to Landlord, in Tenant's efforts to obtain, maintain, renew and reinstate any and all ofthe certificates, permits, licenses, zoning, variances and other approvals which may be required from any federal, state or local authority as well as any necessary easements for Tenant or Tenant's subiessees, licensees, and,/or customers' occupation or use ofthe Site (collectively, the "ApprovaK'). Landlord agrees to execute within 15 days after receipt ofa written request from Tenant any and all documents necessary, in Tenant's reasonable j udgmen! and in a form reasonably acceptable to Tenant to allow Tenant and its sublessees, licensees, and./or customers to obtain, maintain, renew or reinstate the Approvals. 6. Siqnage. Without limiting any of Tenant's rights under the Lease, Tenant shall have the right to install and maintain identifling signs or other signs required by any govemmental authority on or about the Site, including any access road to the Site. 7. Documentation. Upon any permitted Eansfer or assignment of the Landlord's interest in tlis Lease, prior to Tenant's being obligated to make any rent or otler payments to the successor Landlord, Landlord's successor will provide Tenant with a completed Intemal Revenue Form W-9, or then equivalent form, and any other reasonably necessary documentation requested by Tenant in order to confirm such transfer of the Lease. 8. Menorandum of Lease. Upon request by Tenant, Landlord shall execute and deliver to Tenant a Memorandum(s) of Lease, reflecting this Amendment, in a form reasonably acceptable to Tenant and which is recordable in the county in which the Property is located. 9. Ratification/Xstoppel. Tenant and Landlord each hereby ratifies and confirms that t}re Lease is in full force aad effect. Landlord represents and warants that, as ofthe Effective Date, Tenant is not in default in the payment or performance of its obligations under the Lease and, to the best of Landlord's current knowledge, tlere is no existing condition that, although not presently a defaul! may result in a Third Amendment to Cround Lcase Agreement Tybcc Isiand. GA 303430 City of Tybee lsland P.O. Box27 49 Tybee Island, GA 31328-2749 default under the Lease. Except as modified herein, the Lease and all the covenants, agreements, ten'ns, provisions and conditions thereof remain in full force and effect and are hereby ratified and affirmed. If any inconsistency exists or arises between the terms of tie Lease and the terms of this Amendment, the terms of this Amendment shall prevail. 10. Entiretv: Amendment: Counterparts. This Amendmenq together with the Lease, constitutes the entire agreement among the undersigned parties hereto. Any modification to this Amendment must be in writing and signed and delivered by authorized representatives of the affected parties in order to be effective. This Amendment will be govemed by the laws of the state in which the Site is situated. This Amendment may be executed in any number of counterparts, each of which shall be an original, which may be delivered via facsimile, but all of which taken together shall constitute one instrumsnt. Third Amcndment to Cround Lease Agreement Tybee Island. GA 303430 IN WITNESS WEEREOr, Landlord and Tenant have each executed this Third Amendment as ofthe Effective Date written above LANDLORD:WITNESSES: The City ofTybee lsland, a municipal corporation of the state of Georgia 4 !,o<c?9@ <Its: \-\ S isnature Print Name: ACKNOWLEDGEMENT State of County of [, e.. ur...- ( \v$no* On -,t-here insert name). a NotarYIe, Pub rc, pers ally a personally known to me (or proved to me on the basis of tory evl to the s) whose name(s) is/are subscribed tosatisfac the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrutnent the person(s), or the entity upon behalfofwhich the person(s) acted, executed the instrument. WITNESS my hand and official seal -( i \ t Notary Public, 1 Print Name: .,ru My commission expires:L) Tbird Amendment to Ground Lease Agreement Tybec Island. GA 303430 \\.r"Sr;" iLT,"$["C. I n ; cs f pc,ig