HomeMy Public PortalAbout10-10-1997 Lease Agreement- AT&Tt a la.o13tT
Tybee Island
WATER TOWER ATIACTfi 4E!L[
OE5ION AND LEASE AGREEMENI
WEROPTIO N AND LEASE AGREEMENI' ('Agreemeflt') isTI{IS WATERTO
entercd furto ttris ldn aay of OolD fu.{, 1997 by and between TIIE CITY OF TYBEE
ISLAND, GEORGIA ('Landlord), and BELLSOUTH PERSONAL COMMUNICATIONS'
INC., a Dehware corporatton, dit/a BellSouth Mobility DCS ("Teuant').
PROPERTY
Landlord is the owner of ceruin real prope$y (the "Real ?ropel'ty') tocated in the City
of Tybee Islaod, Chatham Couuy, Sute of Georgia, more particularly desuibed ir Exhibit
'A" rttached hereto and mBde a pefi hereof, and kndlord is the owrer of the water lower
situateil thereon whic[ is located at latitude 32' 00' 39" and loryiu]de 80' 50' 31" (de
"Torrer"). Tenam desfues to obtain an oprion to lease a portion of the ReaI ProperrT
containing an approximately 35 foot by 35 foot tract of land (the "Grcund Space'), togetier
nfth ceftah posltions on the Tower betweBn rhe I25 and 135 foot levels on the Towet (or top
available mounting bracket locatiod (collectivety, the 'Tower Space") for the mounting of
verious altefftas ard.related equipnem, as such Ground Space is subsantially shown oa
Exhibit 'A-1 " attsched hereto and made a part hereof (if no Exhibit "A-1" is attached, it shaU
be attached ir the future and shall be mutrally acceptable), together *ith nonexclusive
casements and righE of wsy as arc hcreinafier described (tire Grourd Spaee, thc Tower Space,
rnd such easenrents are bereinafrer colleulvely called the 'Property"),
OPTION
NOW THEREFORE, in consideratiol of rhe sum of Five Hsodred and No/100 Dollars
{$500.00) (the 'Option Money"), to be paid by Temnt to Laudlord upoD TerEnt's etecutio! of
(his AgreEmeEt, Iandtord hereby grants to Tenant the exclusive right and option (&e
"Option') to lea6e &e Property io acsorduce with the terms and corditions sEt fo$b hel,in.
ogtion Perigd. tbe Optioo may be erercised at any tine o! or prior to December 15,
1997 (the "Option Period"). At Tenast's alectioo, afid upon Tenant's vritten notice to
Laodlord prior to expiratioa of the Option Pcriod, ths Option Period may be further extcnded
for an additional perlod of tkee (3) months, through md tucluding March 15, 1998, with an
additional payment of Five lluodred and No/100 Dollan ($500.00) by Tenrnt to landlord for
ttE extensio[ of th? Option Period. Thc Optioo Period may bc thereaffer ftrther exErded by
rnutual agreement in writiag. If Tenant ftils to exctcise the Opliotr r,t ithin the Option Period,
as it may thersafter bs sxtsudd as providcd herein, the Optiol shall terminate, ail dghts and
privilegcs grantcd hercurder shall be deemed completely s-utrendartt!, I-andlord shall reEin all
money paid for the Opdon, and no rdditional money shall be payable by eilher parEy lo $e
other.
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Transfer of Option. The Optios may bc sold, assigoed, or traosfesed at atry time by
Tenant to Terant's parert company ot any affitiae or subsidiary of, or parrner in, Tenant or
irs parent company or (s,ilh the prior wdtte8 consent of Landlord) to any third party agreeiqg
to bc $ubject to thc terms hereof, Otherwise, the Qption may not be sold, assiSned or
ualsferled wilhout the writteo col]sent of Laldlord; such consEttt oo! to be unreasonably
rvtthlreld, cooditioncd, or delayed. From urd after 'the date the Option bas beetr sold, assigned
or traDlfcrred by TeaaBt to a third party agreeirg to be subjtct to ftle terms ltereof, Tenar&
shall tnmcdlstely bc released from atry ard all futtre liability mder this Agrestreut, iacluding
rtle payment of ary rental or other surfls due, withriut any further action,
Changes in PrQotrty DurinL-Ogtion P-erio0., If during the Option Period or any
cxtension t}ereof, or during ttre tsrm of this Agtecmeru if lhe Option is cxercised, landlord
deciales to subdivide, sell or ctange the status of the zoning of the Real propeiq', landlord
shall iuuuediately trot$ Tenant in vriting. Any $ale of ttle Real Property shall be subject to
Teniflt's riEhts undcr this Ag(eemcot. [rndlold sgrees tbat during the Option Pcriod or any
extension thercof, or during the term of this Agreerne if the Option is exorcised, Landlord
shall not initiate or cor8ent to any change in the Tening of the Real Ploperty or impose or
coment to aoy cbange in the zoning of the Real Propcrty or impose or consent to any other
rcstrictisn that would prevent or limit Tenalt frorn using dre Proprty for the uses intended by
Tenarrt as hercinafter set forth in this Agreement
Title. Landlord waEants that (i) it has full riglu, power, aad aulttoliry to execute lhis
AgreeEent; (il) it bas good and unensrmbered lide to fte Real Pmperty and the Tower free
and clear of any liens ot mortgages; atrd (iii) the Groutrd Spaca may be lcased withoul. the need
for any subdivisiou or pla$ing approval. I-atldlod further represeals ald varraats that
Tenant's lnteaded use of the Real Propeny and the Tower as a site for the trnsrnission and
reccipt of radio communication sigrrals; for the construetion and maintenance of related
facilitieG, towers, antsnnac or buildinSs; and for rslatcd activities is not prohibited by any
coyetrafts, restrictions, reciprocal easemenls, servitudes, subdivision rules or o ter
requirernents or regulations which would Eohibit Tenmt's inteniled use of the Property,
L'rcluding the Towcr Spacc, nor Nre there 8ny easements, or other encumbratrcrs on &e Rcal
koperty or the Tower which will interfere srith or consuuclively prohibit Tcnartt's intended
use of the Proper{y, ineluding ihe Tower Sprce. '
Insoectlonr. I*ndlord shall permrt Tenant during thc Option Period, and any extersion
thercof, free ingress and egress to the Real P(operty and the Tower by Tena* and its
ernployees, agenls and contrsctors to corduct sructural strength aflalyses, subsurface boring
tcsts, radio frequency tests and such ot&er terts, iovc$tjgations aad similar activities as Tena
may deem lrec€ssary, at tha sole cs! of Teoart. Tffiant snd its employees, agsDB, and
contrastorc shall have the right to briog the necessary vehictes aad equipment onto lhe Real
Prope*y to cotrduct such tests, ilve$igatioDs and similar activities. Tenaat shall iademnify
aod hold l-andlord harrnless agair$t any loss or darnage for persoual injury and physical
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daDage to the Real Ptoperty ot the Tower, or the property of thbd pa$ies resulting from auy
such tests, investigations ald similar astivities,
Suneys, Iltrdlfid also hereby grants to Teru$ rhe right to survey the Real Propeny
or portion thcreof, and tfte legal description of the Rea! Property, Propery and Ground Space
on the suEvey obtiined by Tenant sball then bccom. Exhibit iBs, whicb shall be attached
her€lo and made a part hgreof, afld shall control in the evenr of discrepancies between it and
Exhibils "A' and 'A-l'.
Govemmentat Anprovals. Tenant's ability to use the Prope[y and tite Tower is
contlngetr! upon iB oblaining all ccrtificates, permits, atd other approvals and iB conrpliance
wi$r all applicable laws, ordinan€€s, nrles or regulatiors that may bo required or imposed by
any federal, state or local luthorities, including without limiation, the Federal
Conuurnicatiotrs Commission ("FCC") and thc Federal Aviation Admidstration ("FAA"). lf
reque6ted by Tenant, any such applicatlorrs may be fited with rpspect to, not only the Properry,
but also the Real Propeny ard the Tower. Tena$ will pcrfonn ali other act! atrd beai all
expenses associated with any zoning or otber proccduie necessary to obtain any certifrcate,
permit, licensc or approval for the Propcrty or the Tower deemed necessary by Temnt.
landlord agrees to cooperate with Teunt, al Tentnt's expense, in its efforts to obtein and
maintaitr io effcct all cefiifrcEtes, permits, licenses, ard other approvals required by
govemfiental au&oriti€s and with Tenant's efforts to eomply with all legal and regulatory
r€quirellen6 rclatrd to Tenands use of iite Property and lhe Torver,
Utilitv S. erviccs. During the Option Period, and dEring the term of thi6 Agreemenr if
the Option is exercised, Lstrdlord slrall cooperarc vith Teuant ia Tenant's effort to obtaitr
utility soviccs along the udlily easement conlained in the Property by signing euch documents
or erscme s as may be requilcd by the utilily companiss, ln the event auy utility compatry is
unable to use thc utility easemenr, tan<llord hereby agc€s to grant an additionat easement and
right of way either to Teoaft or to the utility compaay at no cost to TerEnt or to lhe uriiity
company.
. Exercise of Option. Tcaanr shall exercise the Optiou, ifat atl, by wrisen notice to
Landtord in accotdance with the Dotice pmvisions her€ifl. On and after the cofiunencement
date sct fortl in such notlce, which date must occur prior to rhe expirarioa of the Option
Pedod (the 'Comnroncement Date'), thjs AgEcement shall also constitute a lease agreement
betwe8[ Iandlord and Tcnant on the terms and couditions set forth in this Agreemcnt.
LEASE ACREEMEN]
I . Propeny . Subject to the followhg terms anct conditions, lsndlord ieases to
Tenart the hopefty, which lease inctudes tho grant of a nonexclusive righr of iagress af1d
sgless for access and utlliths to the hoperty, a ionexclusive ersameot over and across such
lodions of thc Tower for the placemeot of coD(iat tra$nission lines or cabtcs as rray be
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necessary for Tenant's intended uss of ttte Propcrty, a (oncxclusivc easement to erect and
ruainain such protective barriers around Tenant'E Cornmunications Equipment as m*y be
€guked by spplicable iaws or reguladons or desirable by Teoant.
2. Use
A. The Property may be used by Tenant for tlre tra$mission aod receipt of
radio commudcation and mahrtc{rals.€ of relucd facilities, towers, antennae, or b*ritdings, and
related aqivities, landlord agre€s to cooperate with Terunt in obtaining, at Tenant's expense,
the Govemrnemal Approvals. Tenam shall be responsible for obtaiuing and fitnishirg proof
of approvals for consorction of its equipEsnl and inslallanon of lhc Communications Cefier,
as lhrt lerm is hercinafrer tlcfined, tom the FAA urd the FCC if such approvals arc
necessiuted, prior to the mmmencerDe of construclion or oporadoos by Ten nt on the
Properry.
B. egtggp-lSd!9t53gpj!trCtr: Iandlord hercby grants permission to
Tenant to insall and q)erate trc followlng and associa@d equipmert on or in &e Property:
(1) Up to six (6) aotenms wi6r tlrc a emae at a permBnEnt loc.ation
in tlp Tower Space. The exaet location of Bntsnnls benreen the aforesaid levels shail be
supplied to Laadlord in tbc iorm of proposed construction drawings and epecificatiors prior m
installetion or constructioni no rlteration thercafter shall be rude withour prior written
approval aIld acceplrncs by Landlordl howcvcr, such Epproval not to be unreasotubly
wi&held, A complete set of as built drawings will be furnished to the landlord following
construction;
(2) Flexible coaxial transmission lires between aniemas and ceuular
coruuruications equipment ihall be anchoM and irstalled on the Torer in acmtdance with
good ard acrcptcd cngineedng practices;
(3) Radio cornmunications equipmeot shelter corsisting of
trusmitler, receivsr anl acgessories to be ins'talled net the base of tlp Tower in &c area
designated as the Ground Spacel
(4) Emergeacy gasoline, diesel or other firel powered geoerator to be
loceted on the Ground Spacc adjacent to the equipment shelter and to ts used at Tena[t's
optio[, but ir most cases only il the event of power failurei and
(5) At fenanl's option, a mobile tower cell on whe€ls ("COW") to
be in$talled on the real property of l,andlord on a non-permarEnt basis until the cornpletion of
fte Replagornetrt Tower (as defined herein), if any, and the relocation of Temnt's a erule,
cables, wirgs, accessorics, artd related cquipmerlt to the Replacer]ent Tower, The specific
locatioo of the COW $hali be substanlislly as ghovfl on "Exhibit A-2" or sush other location
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mutually acceptable to Tenatt ard landlord. If Tenant insts.lls a COW, Landlord
acknowledges and a$ees that the COW, ani Tenant's usc ttEreof, will involve such ante,nnae,
cables, wkes, and relabd cquipmeur as T€natt shaU de€rn necessary for T6nant's intended use
of the real propefiy o[ which the COW is losated, .Landlord hereby gran6 Tcnant sugh
noDpxclusivc easetnei6 for access, installation, mairtenance and oiillties as may be reasonably
necessary for Teru$'s uss of &e COW. Tenant shall plso have rhrilar rights of groufld space
as is eooterEplated for the Ground Space adjacent to the Tower, in which Teuant can operate
the @W and telated equipmcnt, The parties undersund and acknowledge that because of the
signifrcanr delays between tlle contemplated renroval of the Tower and the completion of the
Replacement Tower, the use of thc CrOIY rnay be the raosr viable option for Tenant's initial
operation under this Agreement. Tcnant shali rnjoy the same righ$ of acc€ss and use with
respect to the COrtr a6 it oth.nHise does with rrspcct to this Agreoment for the initially
contemplated Tower location. Ir ls lhe int rtion of the paties that if Tenant uscs the COIV
nther than, or in conjurrtion with, the Tower, to f,est coordhate its tralsf€r to fte
Rcplacement Torper aEd to best mininize "down rime" prior to drc completion of the
Replacement Tower, Tenant shall enjoy the rights and privileges, granred hsreunder, to rhe
full extent applicable, with rcspect ro its operation of tbe COW.
(For the purpose of this Agreenent, all of Tenant's equipment, buildi-ng, pancls, gencraror,
cables, wLes, anterurae, and accessories and, if bstalleal, the COW, slrs,ll hereisafter
collectivcly bc rcfcmd to as "Coomunications Equipment" or *Communications Center".)
3, Access. Landlord agrees that during the Initial Term of dris Agreement or any
Renewal Term as is hereirufter provided, Tenant shall have reasonable ingress anri egress on a
24-hour, 7 days per week basis to the Property ard thc Tower for the purposes of
mailrcnance. installuion, repair and removal of said Communhations Equipmem. It is
agreed, however, that anly authorized enginee$ or smployees of Tenant, or persons under
Tenant'a direct stpcrvision, will be pemitred to enter the.Prop€rty or the Tower to itrstall,
re&ove and repair Tenant's Comrnunicatiors Equipment, Tenanr is responsible for the cost of
such activities and will notiry landlord in advurce of its need to instsll. or rBpah its
Communieations Equipnent lscatcd on the Tower; EXCEIrI HO\YEVER, in 6e case of an
ernergercy whereupon aotification shall be givcn,as smn as reasonably porsible.
4, Term. The term of &is Agreernertt shall be tive (5) years, comrneocing upon
the Com[enccnent Date (as deJined herein) ard rerminating at rniddghr oo ttc fifth (5rh)
andverury of thc Commencement Dete ('lnitiai Term'). Provided Tenant is not then in
default, Tenart slull have fte ghr, but not the obligsfion, to exteBd this Ag&€ment for tkee
(3) additiooal fl\,e (5) year terms ('Benewal Terros') , Bach Relteqat Term shall be on tbe
same terms and condltbns as set forth i:r this Agreernent exccpt that the Renl shall be
iiereased at the incepdon of eaeh Renewal Temo as specified fu paragraph 5,C, This
A$eement shall automatically be renewed for.each succeEsivg Renewal Tenn unless Tenant
rctifies Lardlord of Tena 's intentiotr not to renew the Agteemerlt al least 30 days prior to
the expimtion of the Initial Term or the Rcnewal Terrn which is thrn in cffect.
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5.Rena.
A. Upon the Commencemctt Date,'IeBant shall pay l-alrdlord the sum of
One Thousa$d Two llundred Fity and No/100 Ilollars ($1,250.00) per morth as renhl
(.Rent'), Rent shall be payable on the first day ofeach rnolrh in adva.nce to Landlord at
Landlord's a&ir6ss as spocified in Paragraph 19 belon.
B- If this Agreemenr is terrrinated at a tirre other than on the last day of a
monrh, Rent shall be proBted as of fie date of terrninadon, antl hr fte event of termination for
any reasou other tlnn nonpayment of Rent, all prepaid Rents shall be refu-qded to Tenant.
C. In the event this Agreemest is renewed as provided for in patagraph 4
hereirr, tbe rcnt due in each Reoewal Teno shall be as follows:
(i) Nent due in the first Rcnewal Tersr shall be One Thousnnd Five
Hundred Slxty-Two and No/16r) Dollars ($1,J62,00) per monthl
(i0 Rert afuc in &e secold Renewal Term shall be One Thousand
Ninc Hundted Fi8y-Thlee ald No/100 Dotlars {$1.,953.00); and
(iiD lte duc in tle third Renewal ltrm strall be Two "fhorrsand Four
Iluklred Forty-One and No/t"00 Dollars ($2,441.00).
6. Tenant's Representflions aa{W.arranties. Teuant covenar*s aud agrces that
Teriant's CofiEludcrtions Equipmcnt" its installation, operarion and maintenarrce shall:
A. Not ireparably damage the Tower and accessories thereto;
B. Not intfffcrp vith thB lardlord's operation of the Tower. [n the event
there is interference by TeDatrt, Tenant will proroptly take al! sleps necessary to correct. and
elirde& thc saroe within a rcasooable period of time, If Tenant is unable to ellminatB such
interferense caussd by it within a reasonabtr pcri;d of time, Tmant agrees to resrove its
aotcs[a$ from h$dlord's proprny and tlris agrecmcnt shall tcrminate. Interfetcn':e sh.ll
iralude any damage to tlre Towcr, its operatiom or to the water maintained for storage
cortained within tJle tqrk, Tsna$t agrees that il shall be ful1y and conpletely respollsible ,br
any ald all damage to the storcd water. to the tank and to the 'l'ower and all support systenrs irr
its placement of its property on l-andlord's propeny. Any contaminatio[ of l,ardlord's srored
water, adsirg from Tenant's operaiions, or thosB of Teltant's agents, enployeft, contractors
or invilees, shall be the sole tespnsibility of Tenant to correct; and
C. Compty wirh all applicable rules rnd regularions of thc FC{ and
clEotrical codes of the City and Stat9 collcer{ed.
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7. l:ndlord'sReoresentatiorrsandWarranties.
A. Iandlod represeots and warratrls that TeEaTrr's intended use of the
koperty as a site for *B rraEsmissioa and r€ceip of ladlo coflmunicatiou signals; for the
comtruction and mair&nauce of rebted fecilitiEs, towers, aflterrrBa or buildiflgs; and fot
related activities is not proNbiEd by any coverEfis, rsstrictiotrs, reciprocal easemenB,
servitudes, subdivision rules or other requirements ot regulations lrhich would pmhibit
Tela 's inteDdcd use of the Property. Nor arc *tcte any eaEerncnts or ol.her encumbtances on
the Propcrty which will interferc with or coostructively prohibit TenaBt's intended use ofrhe
Propcrty.
B. l:rrllord represents and warrants that, if corlstrueled, tle Replacement
Tower (as defined hercin) will have adequate existing struc$ra1 supporr and integriry ro
cupport Tesant's Communications Equipmc*, with the exccption of tlte COW. I*ndlord shall
maintrln and repair the Replacem€nt Tov/er and rhe Tower during the Initial Term and any
Reaei4,al Tem of this Agreement in corpliance with all applicable laws aud regulations and ir
satisfadory goDdition. Landlord shall msifltain ttle Replaccmelt Tower, the Tower, and Real
Property as a comrolled environment not open to ihe general public.
8, Abatement of Rem. If rhc Tower is damaged for any reason so es to rerder it
sulsuatially unusable for Teuant's usc, retrt shlll abate for such period as the Tower is
subsantlally unusable for Tenant's use. [f landlord, at its expeise, fails to repair or restorc
the Tower to its coadition prior o such damage, Tenalt may eitlrr terminate this Agreemeut
upon rrriien sotice to l-andlord o( repair or rcstorc rhe Towcr at Tenant's expense.
9. Noq-Exclusive Agreerrent, This Agreement shall be aonexclusive ald
landlord nay $ant B similar lease to any other paty. lardiord will not, howc]rer, granr Euch
a slmilar lease if such Erant will in any way adveisely affect (which adverse a$ect shall r€lare
to thc opcfttion ar, ard the use and eDjoymeft or, rhe Propeny and shall trot reiate to
competifve affects) or ioferferc with Tgnant'e use of Tenant's Comlnuuicafion Equipmenf.
Tenarr shall not rnaterially change the frequercy,'power or character ofits cquipment without
frst obtainiqg thc writtetr conseDt of landlonl, which shalt not b€ unreasonably withheld,
conditioned or delaycd.
10. Conditionsleeedent. Tenanr's obligation to perform uflder fiis Agrerment
shall bc subject ro rnd couditioned upou Tenant securilg appropriate approlals for Temnt's
intended use of t]le Property frorn thc FCC, tfue FAA, and any other federal, stato or local
regulatory authority having jurisdiction over Tcn3nt's proposeC use of tire Property. Tenanr,s
in4bility to suoce6sfully satisft these conrlitions or the occunence of &ny other event whish
effectively prohibits Teoant's intcrdcd use of ttre Property shall relieve Tennnt from any
obligadon to perforEt urder tlis Agrcfie$ (except for indcmdty obligedons previously
ircurred and Tenant's obligaliotr to remove i:he Conununicatior$ Equipment or any other
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personal property) and shall enrittc Tenant to r$lih,rtion of any Ptepaid tnonthly rental
payments whicb have been paid ro t$dlord.
I I . Conditions Subseouelll. In the eveat .thBt Tenad's intended use ol ttre Propeny
is actuaily or conslruclively prohibited, then this Alreement shalt termfu,arc and be of no
turther force or effect (excspt for indeEnity obligations previously ircurred and Tenant's
obligation to temove its Comrrunication fuuipment or asy other pcrsonal property) and
TeDatrt shau be entitleat to a tefun from Iandlord of any prepai<i Rents or deposfts paid to
Landlord prior to the date upon wNch Tenant $ves lanillord rctic€ of its intert to terminate
this A$eement pursuant to this paragraph.
L2. Interference. I*ldlord strall lot use, nor shall Landlord permit its lessees,
Iicenrees, invitees or agents ro use any portiol of Landlord's Real Property or Tower in any
way wbich interferes, based on geoerally accepted bngineering and telEcommur{catiors
st rdirds, witb thc operations of Tenant desclibed,in Secdon 2 above. Such iaterference shall
be deemed a matcriaibreach ol this Agreement by laDdlord and Iandlord shell have the
rs$porBibili8 to promptly lcrninatc 6aid interference, In the went ray such inErfereqee does
not ccase or is not promptly rcrti{icd, lxtrdlord ackrowledges thal continuing iuterfcrence will
cause irreparable iqiury to Tenanr, aod Tenarrt slull bave rhe righr, in addition o any ottrer
rigfus that ir mry hsve at law or ir €quily, to bring action to enjoin such interfcrencc or to
tsnBiBre tttis Agrcemen! inrrncdiatcly upon notice to LaDdlord, With respect to any frrtlFr
lessees, lieenres, invitees or agents of any portictr of [andlord's Rea[ Propercy or Tower,
Lardlord sisll make all rersonable effons to include ifl its ag:It+ment wi& said third{arty that
such third-party prevent any ilErference with Tenantrs operatiols.
13. Tgrgdnalign. Except as orherwise providcd hcrei!, this Agreemont mry be
tcrrnihatcd, without any pesalty or further liabiiity (axcept for indemnity obligations
previowiy inurrred and Tenaot'e obligatlon to remove its Comnunicllions F4uipment or any
other porsonal propefy) on 30 deys' written notice if eittpr of the follo,wing conditions should
apply:
A. Upon a defarlt of aDy covenant or entr bereof by the other party which
default is not cwed within 30 days of teccipt of written notice or default (without, however,
lfuniriog any othcr rights avdlable to dre parties pursuaBt to any other provisions bereof);
B. If Tenanl is unabls to obtrin or maintain any lictnse, permit or other
Govern nental Approval necessary to tle consinrctio[ and opetation of the Communicatioas
Ce et or Tenant's business; or :
C. By Tenant for no reason or any teason at all upon providing six (6)
montls advance writetr mtice to L.andlord.
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!4. Suble3$gs. After lirst obtainiry the writteE eonsent of Laodlord, which consert
shalt not b€ unrrasonably withheld, conditioned or delayed, TenaBt shall have the right to
sublease thp Prop€ny or arv portion theEeof to othe(s whose prilrary business is rtre provision
of radio transmission and communhatton Ecrvices, Terraa!'s sublessce(s) shall be entitled to
rights of iDgres$ and egress to the Property and ttre iight to iffau utilities otr the Property as if
said $rblessee were thc Tenant under this Agreemsst. If md to ihe exteet required under
applicable law, any re s receivcd by Tenant from any sublesscc(6) in excess of ttre Rent paid
by Tenaar hereunder shall be Landlord's, It is under$ood lhat Landlord is conserned lhar
undcr applicable [aw, a tenant leasing property from a govemmental entity may aot be entitled
to frIlancial profits ia the sublcasing of portions of that property, a8d Lardlord aod Tenant
agree that they vish to conform ftis Lcase to applicable law. Until such tfiie as it is
detcB3irEd that such eubleasiry excass re s ale an impermissible protit for Tenart, T€naEt
and Landlord shall shue such excess rents evenly (i.e. 5S.50). Immediarely upon tire
detelninrtion by a eourt of comFtent jurisdiction or similar authority thal Tenant is not
eDtltled to such excess rents, such oxcess rentc shall be paid to Landlord by Tenant, to ttre
extent achrally received.
15, Ta:res, Tenant sha{ pay any pcrsooal property taxes assessed on, or any
portioa of such taxes attibutablc to, the Communioations Cefier. Landtord is exempt from
aoy obligatiotr to pay real property taxes on the Reai Property and the improvemerf,s owned by
landlord which are located thEreon,
16. Insuraq$e. Tenalt shall, et Tetrant's expense, purchase and mainuio io full
forco aDd cffBct througbout the term including any renewals or sxteNions thercof, such p:blic
liability rad prope*y darnage policies as Tenaft may deun necessary. Said poliey or policies
will ptovide r minhrum combined single listii of $1,000,ffi0 and will mme Lanallord as
additional insurcd.
11, Destrilctiol of PremiqgE. If the Property or tlr Communications Equipment are
dcstroyed or damaged Bo rs to hinder tbe effeclive use of tlle Corfiounications Equipment in
Tenalt'r judgmcnt, TerEn! may clect to remiralE this ASrecment as of the date of the damage
or dcctructior by so notiSing the kndlord, In such ovent, all righ$ and obligations of the
psnies shau cease as of the date of the damage or desEuction (except for indemnity obligatioru
previous$ incuncd rnd Tenant's obligatiotr to rsmove is Cornmuaications Equipment ot auy
othet persooal prcperty) and Tenart stEll be endtleit to thB reimbursement of any Rent prepaid
by Tefiant.
1E. Environmentrt CorEliance. Lancllord represents and warrants dtat, to &e best
of l:ndlord's.knowledge, the Rcrl hoperty ad the Tower are in cornpliance $}i& all laws,
ordinalces, rrticcs, order, rules, regulations artd requir€Be s of any and all feder8,l, stare, or
municipal goverDmcds or thcir appropdare depafimcnts, cornrdssions, boards and offices
thereof.
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9Llso&Vcii, oan!..lsLd
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Tgrunt shall have the riglrt to conduct an environmental audit of te Real
Property and the Tower at Tenant's cxpense. Tcnaut shall aot be obligated to lake possession
of tiE ProFerty under thfu Agreement if the envirosneoBl audit reveals tllat the Reai Froperty
and the Tower contaiffi contaminff s, oils, astestos, radon, PCB'g, hazardous substrnces or
hazardous wastes as definsal by fedcral, starc or local environnpntal lews, regularions or
ordsrs or other matcrials the remov"at of which are required or the maihtenance of which is
prohibited, regulared or penallzed by any federal, state or local governrueDt aulhority
("Hazardous Materials").
19. Noticgt. AII notic6s, requesB, demands and other communications hereunder
shall be in writiag and shall be deencd given if delivered personally or by a nationaliy
lecog ized overnight courier for n xt{ay dclivEry or mailed, ccrtified mail, return re$ipt
requesled, .to thc following addresses:
u-ts-terdleld,ls:
City of Tybee Island, Georgia
P. O. Box 128
Tybee lsland, Oeorgia 31328 (912),786{571
City of Tybee Islald, Georgia
403 Butler Avenue
Tybee tsland, Georgia 3132E-2749:
If to Tcnanr-to:
BellSou$ Perronal Communicatiors
3353 Peacfulcc Road, N.E., Suirc 300
Atlanta, Georgii 30326
Attention: Real Estate Depadnent
With a coov to:
o
BellSouth Personal Communications
3353 Peactrlrce Road, N.8., Suite 40O
Atlania, Gcorgia 30326
Attention: legal Degartrnent
g.rsourh/Ciry lrTtbe! Lhr.l 10
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m. Tltle and Ouiet Enjoyment.
A. kndlord warrdnts that (i) it hx full right, power, and authority to
execute this Agteement; (i0 it has good and urBncumbered title to the Real Property and tire
Towpr free ald clear of ary liens or mo g€es; (iii) the Real Property constiEtes a legal lot
that may be leased withqt the nced for any subdivision or platting approval, ard (iv) ftat
Ten"qt s6.1t *rr tlre quie3 enjoynenr ofthe Property, the Real ProperE (to the extelt is las
rights hereurder to th€ Real hoperry) and tle Tower durirg ttr term of rhis Agreenrent.
B. Tenant has ttr right to obtaifl a tide repost or co$mitment for a
leasehold title policy ftom a title insuance company of its choice. If, in the opinion of
'Ien3nt, such title report shows any defecs oftitle or any liens or encunbmnces which
adversely affect Tcnaft's usc of thc Prupfity or Tenant's ability ro obrain leasehold financing,
Tena sbatl h&ve thc tight 10 cancel &i$ A$eemeft immediarely upol written notice to
Iasllord.
C. Tenant shall rlso havc thp right lo have the Real Property surveyed and
to have soil borirgs ard analysis test! ruL In the event that ary defects arc shown by tbe
survey or the soll aralysis, which in the oginion of tte Tenao!, may adversely affect Tenanr's
Bse of tha Prope$y, Tcnant slull have the right to paacel dlis lersc imrncdiatcly upon wdtten
notic€ !o laDdlord.
21, Assignment. Any assignocrrt of &is Agrcement thar i! enterEd ioto by Tenant
shsU be subject lo thc provisioru of tlis Agreetrtent. Additiorully, Tenafi may, upon trotice to
lardlord, mortgagi or gmnf a security intcrest in the Communications Center, snd may assign
the Cornmunicatjons Centrr to any such mortgagccs or holdels of sccurity i erests including
their successors aDd assigns.
22, Indemnifrcation. Teoant ehall inderurify, protect, save ard hold harmlcss
Laodlord and the directors, officers, employees, ageats and volunteers of landtord, (for the
purposes of this paragraph, collectively "Lardlord'), ftom aud against any ard all claims,
dcmalds, judgirnetrts, set-offs, losses, damagos, liabilities, awards, flnes-and expense,
includiqg widlout limitatio!, tbe coocurrert negligence of Lardlord and ths Te0int, fie
co$ributiug negligence oftlle Tenaut Erd aty Urird party, and atry atrorney 's fees, cxFenses or
other costs associated wi& or incurred, based onor in any rnamer arising out ofor related to
the pcrformance or nonpcrformarre of this Agxeeme$ by th€ Tenad hereunder, includiag but
mt limitcd t0, injury to pcrsons or property, acual da&ages, conscquential damages, punitive
darnagcs, losses, set-0ffs, warranry claim, pro&it liability claims or other damages arising
out of8n action for stict liability h tort; provided, however, that nothing conained in this
provisiol shall be interpr€@d to indcrnnifi or hold hamrless l:ndlord againsr tiability for
damagrs arlsing out of bodily iljury to pcrsons or daroage to properry caused by or resultitrg
from lhe sole negligerce or willful miscondust of l,aldlord, and Landlord slall indeorni$,
protccr, saye ald hold barlnlcss Teunt agahst liabiliry for damages arising out of bodily
,.ttsolwcir, otTrbe bLrd !1
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injury ro persors or damage to propety caused by or r€sulting from thg sole ncgligence.or
willful Itliscotrduct of landlord. Wilhout limi$og the foregoirg inden]nily, ttre Tenanr $hall
indemnify the l:tdlord fot ell dcfens€ costs, includiug reasonable attorney's feas, and
unounts paid itr ssftlement,
X3, Successors and As$igns. This Agreement shall run with the Real P(op€rty.
This Agreement shall be binding upon. ,nd i ure to the bene{lt of thc Ia ies, thelr raspective
$]ccessors, pcrsotral rcpresentalives erd rssigns,
24. MiscellaoeQus.
A, Each party agrees to fumish 0o the other, within l0 days after requert,
such truthfi{ estoppcl informadon as the ofter nray reasonably rcquest.
B, This Agreement constitutes the e irc agrecment and understandiog of
thc parties, and supetsedes all offtrs, negodaliom and othcr agreements. Tbere are no
reFresentstions or ullderstardinEs of rny khd not set forth hereh, Ary atr*ndr[ents to said
.dgrecnent tnust be in writirU ad execrted by both panies. The foregoirg sutemenB of this
Section 24(B) relate only to this Agreemelt, and tlie uansaction contemplated herein, ard in
the cveat thar lanrdord and Tcnaut (or any affiliates of ei0rer) are paflies to axy separalc
agrsement fsr transactions uffBlated to this Agreement, sueh separate agleements shall in no
way be affe{tcd by this Agreement.
C. If ei&er is represeBted by e real estate broker in this transaction, that
F6rty 6hau be ful1y rcsponsible for atry fce due such broker and shall hold the othff pany
barmlers ftom any clatns for commission by sucb broker'"
D. laadlord agrees !o cooperate with Tenant in exeruting any documents
llEcessary to prst8ct Tcmrt's rights under this Agre.emenl or T6sant's use of thq Propcrty end
to ta&e ary ftflher scdon which Tc ant trlry reaso0ably reguire as to elfecr 6e intem of this
Ageement.
E.
Sbate of Georgis.
This Agreeoent shall be construed in accordancc with the laws of ths
F. If rtry term of thb Agrecnrcnt is found to be void or iuvalid, such
iavalidity sha![ not affect thp i€rnainiEg trrnls of this Agreement, which shall continue in h{}
forcc and effect,
G. Foltorvilg the execution of this AgrEement, eirinr party, at iL\ sole
expc$e, shtU be qltided to file a mcmorandum or short fomr of lease of reeord i, tie Coudrv
Yihere the hoperty is locatEd.
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8.|$]rlc/C!t otBo.c Ludd 1)
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B. This Agreerneru, if Tenant ex;cises the Optbn, grants ro Tenant a
leasohold cstare and not mcrely a usufruct.
L Tide to all improvement$ constnratcd or iqstalled by Tenant on &e Real
Property or the Tower shall remain in Temnt, and all improvemenls coratmcted or iustalld
by Tenart shetl at all tiBes be ald retllaln &e property of Taunt" rcgardless of whether such
iErprovemeBts are attached or afftxed to the Tower or the Rcal Propcrry. Tenant, upon
termination of this Lease, shall, within a reasonablc pctiod, rcnrove its improvernents &om tk
Tower and the Real Property.
25. Replacement Tower. landlord and Tenant aclaovledge that Landlord i ends
to coD$truct a spherical water tower to rcplace the existing Tower (the "Replacsment Tower").
tandlotd indicates that it tenradvely anticipates the completion of the Replaceme$ Tower by
ocrobea 1998. The Replaceme$ Tower may b€ c{ns(ruct€d $o as to perroir Tenant's use of
the Reat hoperty and Replacerrnt Tower for &e purposes intended by Tenan! herein and the
potentiat use of the Replecement Tower by other communicatiou carriers. Once the
Replacement Tower is completed, refetences to the "Tower' herein will be deemed to refer to
the Replaceurcnt Tower. To the exte necessary, the Gmurd Space, To.aer Sace, and
easments related hereto will be modificit upon the completion of the Replacemenr Tower. All
such modificatioas shall b€ mutually satisfactory to kndlord and Tenant. Furthe!, all exhibits
to this Agreement shau bc revised to thE mutual satisfaction of Landlord Erd Tenant, upon the
completion of &e ReplaceE ent Towet, to colrecuy rcference thc Property leased.
If tle Replacement Tower is co$trueted to accorunodate ttre use of the
Replacerncnt Tower by Te8ant and o&er communications carriers, Tcrant agrees to leimburse
Latrdlord for Tenant's prorats share of thB diffcrcnce between (i) &e co.sts hndlord would
have ineurred to eonstruct the Rcplaccment Tower \ryithcrut ascorn$odating the use theroof by
Tenaru or other connouuications carriers, and (ii) Laadtord's rcasoaable, actual costs lo
coltEuuct lhe Replacemcnt Towcr with the upgrades nece3sary to acco&nrodate the use thereof
by Tenant or otber commuoications carriers. For example, if the Replacement Tower wi&out
such upgrades would hav€ cost L,ardlold $?0,0@ to consruct, and tlr Replacement Tower
with such ulgrades rctually cosls klldlord $90,008, Temnt would pty its prorata share oi
$20,m0. Tcflnt'E ptorata share shail be based on the projecEd Nmber of users of the Real
Property and Riplacerrc Tower, wlich projected number shall be muualty agrecd upon by
landlord antl Ttnant, based upon theit best-guess cstimations of tire likely number of future
useN.
If Tenant dete(dnee rbat ils prorata shats is excessive, il is sole discretion,
Teflnt may without waivilg any othcr right or rcmedy, terminate this Agreemeot effective
lurcdietely upo! written notice to Lindlord. If Tenant terminates this AglesnEnt as provided
in the previous senlcncc, Landlord agrees to cooperate i'1 good faith witb Tenant iu Teqant's
cffort$ !o rclocae to such other site owncd by I-mdlord that is suitabl€ for Tenant's idended
rrse, under terms and conditioos subsuntially similar to this Agreernem
Ddl5.uloty ol Tlb.. IrLnd 13
o a t /{o - ot3
tol6rr!{.!/28rt6l
ro]5\1t]r6t
Signed, sealed afld delivercd tlis*t ouy ot $r..'f ,
19{l-, in the precehe of:
DATED AS OF THE DATE FIP.ST SET FORTH ABOVE.
INNDLORI)
THE CITY OF TYBEE ISLAND, GEORGIA
Byt
Print Name:
Title: Mayor
ATTEST:
TENANTI
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Unofficial Wimess
of c\sr
Mr coffigipn$pflips:
tlllldh, puhllc- CftatMrn County. 6d.-]6G;;b-A ;,' Erir'"-.-l6n:-E;1eee
Public
(NOTARIAL.SEAL)
BELISOUTH PERSONAL COMMUMCAT]ONS, INC.,
a Delawarc corporation,
d/b/a Mobility DCS
sealed ard detivercd this
day of
199 in the prcsence of:Namg:)Title:s; €s*al-a-
Winess AfiEST:
By:&^ryk*
Title:
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My Bxpires
(NOT
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