HomeMy WebLinkAbout2007-06_~ .~~
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Ordinance 2007-06
Authorizing Contract with New Cingular Wireless PCS, LLC
Adopted: Apri13, 2007
Effective: April 3, 2007
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TOWN OF PULASHI, VIRGINIA
ORDINANCE 2007-06
AUTHORIZING A CONTRACT WITH
NEW CINGULAR WIRELESS PCS, LLC
WHEREAS, the Town Council of Pulaski, Virginia has determined that it is in the
public interest and general welfare to engage in Downtown Revitalization and improved
communications; and
WHEREAS, New Cingular Wireless PCS, LLC, can provide valuable services to
the Town of Pulaski performing the services described in the attached contract labeled
Exhibit A; and
BE IT ORDAINED by the Council of the Town of Pulaski, Virginia, that the
lease (Exhibit A) attached hereto and expressly made a part hereof as if expressly set
forth herein, authorizing the construction of a cellular phone tower by New Cingular
Wireless PCS, LLC, on land owned by the Town of Pulaski, Virginia is hereby adopted
and the appropriate Town Officials are authorized to execute same.
This ordinance is effective upon adoption and is hereby adopted this 3rd day of
April, 2007, subject to proper execution by New Cingular Wireless PCS, LLC, and is
adopted by the duly recorded vote of the Town Council of the Town of Pulaski, as
follows:
Jeffrey S. Worrell
Dan Talbert, Jr.
Lane R. Penn
- Aye Joel B. Burchett, Jr. -Aye
- Aye David L. Clark -Aye
- Aye Larry Clevinger, II -Aye
Town of Pulaski, Virginia
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By:
C ar es ade, ayor
ATTESTED:
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Patricia ruise, Clerk o Counci
t
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'Market: Virginia/West Virginia
' Cell Site Number: R0391 -Fixed Asset # 10103218
Cell Site Name: Pulaski
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Agreement"), dated as of the latter of the signature dates below
("Effective Date"), is entered into by the Town of Pulaski, a municipal government, having a mailing address of
P.O. Box 660, Pulaski, VA 24301 (hereinafter referred to as "Landlord" or "Town") and New Cingular Wireless
PCS, LLC a Delaware limited liability company, having a mailing address of 6100 Atlantic Boulevard, Norcross,
Georgia 30071 (hereinafter referred to as "Tenant").
BACKGROUND
Landlord owns or controls that certain plot, parcel or tract of land, together with all rights and privileges
arising in connection therewith, located at 525 Ridge Avenue, in the County of Pulaski, State of Virginia
(collectively, the "Property"). Tenant desires to use a portion of the Property in connection with its federally
licensed communications business. Landlord desires to grant to Tenant the right to use a portion of the Property in
accordance with this Agreement.
The parties agree as follows:
1. LEASE OF PREMISES. Landlord leases to Tenant a certain portion of the Property containing
approximately 1,800 square feet as described on attached Exhibit 1, together with unrestricted access for Tenant's
uses from the nearest public right-of--way along the Property to the Premises as described on the attached Exhibit 1
• (collectively, the "Premises").
2. PERMITTED USE. Tenant may use the Premises for the transmission and reception of communications
signals and the installation, construction, maintenance, operation, repair, replacement and upgrade of its
communications fixtures and related equipment, cables, accessories and improvements, which shall include a
suitable support structure designed to support Tenant and at a minimum two co-locators (the "Tower"), one of
which may be the Town of Pulaski at the Town of Pulaski's sole discretion, associated antennas, I beams,
equipment shelters or cabinets and fencing and any other items necessary to the successful and secure use of the
Premises (collectively, the "Communication Facility"), as well as the right to test, survey and review title on the
Property; Tenant further has the right but not the obligation to add, modify and/or replace equipment in order to be
in compliance with any current or future federal, state or local mandated application, including, but not limited to,
emergency 911 communication services, at no additional cost to Tenant or Landlord (collectively, the "Permitted
Use"). Landlord and Tenant agree that any portion of the Communication Facility that may be conceptually
described on Exhibit 1 will not be deemed to limit Tenant's Permitted Use. If Exhibit 1 includes drawings of the
initial installation of the Communication Facility, Landlord's execution of this Agreement will signify Landlord's
approval of Exhibit 1. Tenant has the right to install and operate transmission cables from the equipment shelter
or cabinet to the antennas, electric lines from the main feed to the equipment shelter or cabinet and communication
lines from the main entry point to the equipment shelter or cabinet, and to make Property improvements,
alterations, upgrades or additions appropriate for Tenant's use ("Tenant Changes"). Tenant Changes include the
right to construct a fence around the Premises and undertake any other appropriate means to secure the Premises,
notwithstanding the foregoing, the Town shall have access to the Premises, excluding the interior of Tenant's
equipment shelter or cabinet, at all times. Tenant agrees to comply with all applicable governmental laws, rules,
statutes and regulations, relating to its use of the Communication Facility on the Property. Tenant has the right to
modify, supplement, replace, upgrade, expand the equipment, increase the number of antennas on the Tower
• provided that such modification meets the requirements of any and all special exceptions granted by the Town
Council of the Town of Pulaski or relocate the Communication Facility within the Premises at any time during the
2005 NoRheast Lead Lease
. :term of this Agreement. Tenant will be allowed to make such alterations to the Property in order to accomplish
' Tenant's Changes or to insure that Tenant's Communication Facility complies with all applicable federal, state or
local laws, rules or regulations. Provided that the Tower has structural capacity to support such co-location,
• Landlord shall be allowed to co-locate its emergency services equipment and its communications equipment on the
Tower at its cost, but with no rent or rent credit due to Tenant as a result of such co-location. In the event Tenant
desires to modify or upgrade the Communication Facility, and Tenant requires an additional portion of the
Property (the "Additional Premises") for such modification or upgrade, Landlord will consider, in good faith,
leasing to Tenant the Additional Premises if available, upon the same terms and conditions set forth herein, except
that the Rent shall increase, in conjunction with the lease of the Additional Premises, by a reasonable amount
consistent with rental rates then charged for comparable portions of real property being in the same area. Landlord
agrees to take such actions and enter into and deliver to Tenant such documents as Tenant reasonably requests in
order to effect and memorialize the lease of the Additional Premises to Tenant.
3. TERM.
(a) The initial lease term will be five (5) years ("Initial Term"), commencing on the Effective Date.
The Initial Term will terminate on the fifth (5`~) annual anniversary of the Effective Date.
(b) This Agreement will automatically renew for four (4) additional five (5) year term(s) (each five (5)
year term shall be deemed as the "Extension Term"), upon the same terms and conditions unless either party
notifies the other in writing of its intention not to renew this Agreement at least sixty (60) days prior to the
expiration of the existing Term.
(c) If, at least sixty (60) days prior to the end of the fourth (4r'') extended term, either Landlord or
Tenant has not given the other written notice of its desire that the term of this Agreement end at the expiration of
the fourth (4~`) extended term, then upon the expiration of the fourth (4~`) extended term this Agreement shall
continue in force upon the same covenants, terms and conditions for a further term of one (1) year, and for annual
terms thereafter until terminated by either party by giving to the other written notice of its intention to so terminate
at least six (6) months prior to the end of any such annual term. Monthly rental during such annual terms shall be
• equal to the rent paid for the last month of the fourth (4~`) extended term. If Tenant remains in possession of the
Premises after the termination of this Agreement then Tenant will be deemed to be occupying the Premises on a
month to month basis (the "Holdover Term"), subject to the terms and conditions of this Agreement.
(d) The Initial Term, the Extension Term and the Holdover Term are collectively referred to as the
Term ("Term").
4. RENT.
(a) Commencing on the first day of the month following the date that Tenant commences construction
(the "Rent Commencement Date"), Tenant will pay the Landlord a monthly rental payment of Thirteen Hundred
and Twenty-five and No/100 Dollars ($1325.00) ("Rent"), at the address set forth above, on or before the fifth (5~')
day of each calendar month in advance. In partial months occurring after the Rent Commencement Date, Rent will
be prorated. The initial Rent payment will be forwarded by Tenant to Landlord within thirty (30) days after the
Rent Commencement Date.
(b) In year two (2) of the Initial Term, and each year thereafter including throughout any Extension
Terms exercised, the monthly rent will increase by three percent (3%) over the Rent paid during the previous year.
(c) Intentionally deleted.
(d) Co-location of other carvers shall be allowed by Tenant, provided that the Tower has structural
capacity to support such co-location. Rent shall be increased by One Hundred and Fifty and No/100 Dollars
($150.00) per month upon commencement of installation by the first co-locating carrier. Rent shall further be
increased by an additional One Hundred and Seventy-five and No/100 Dollars ($175.00) per month upon
commencement of installation by any subsequent carrier. In the event that any co-locating carrier later removes its
equipment from the facility and ceases to pay rent to Tenant, Rent shall be reduced by the amount then-currently
attributable to that co-location. Additional carriers shall be bound by all the terms and conditions contained in this
Agreement and further shall sign an addendum to this agreement evidencing that they are bound by its terms.
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2005 Northeast Iand Lease
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. :5. ~ APPROVALS.
' (a) Landlord agrees that Tenant's ability to use the Premises is contingent upon the suitability of the
Premises for Tenant's Permitted Use and Tenant's ability to obtain and maintain all governmental licenses, permits,
•approvals or other relief required of or deemed necessary or appropriate by Tenant for its use of the Premises,
including without limitation applications for zoning variances, zoning ordinances, amendments, special use
permits, and construction permits (collectively, the "Government Approvals"). Landlord authorizes Tenant to
prepare, execute and file all required applications to obtain Governmental Approvals for Tenant's Permitted Use
under this Agreement and agrees to reasonably assist Tenant with such applications and with obtaining and
maintaining the Government Approvals. In addition, Tenant shall have the right to initiate the ordering andlor
scheduling of necessary utilities.
(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 and to have the Property surveyed by a surveyor of Tenant's choice. In the event
Tenant determines, in its sole discretion, due to the title report results or survey results, that the condition of the
Premises is unsatisfactory, Tenant will have the right to terminate this Agreement upon notice to Landlord prior to
(i) commencement of construction, or (ii) the first anniversary of the Effective Date, whichever occurs first.
(c) Tenant may also perform and obtain, at Tenant's sole cost and expense, soil borings, percolation
tests, engineering procedures, environmental investigation or other tests or reports on, over, and under the
Property, necessary to determine if the Tenant's use of the Premises will be compatible with Tenant's engineering
specifications, system, design, operations or Governmental Approvals, provided such tests or reports are conducted
and obtained prior to commencement of construction.
6. TERMINATION. This Agreement maybe terminated, without penalty or further liability, as follows:
(a) by either party on thirty (30) days prior written notice, if the other party remains in default under
Paragraph 15 Default and Right to Cure of this Agreement after the applicable cure periods;
(b) by Tenant upon written notice to Landlord, if Tenant is unable to obtain, or maintain, any required
approval(s) or the issuance of a license or permit by any agency, board, court or other governmental authority
necessary for the construction or operation of the Communication Facility as now or hereafter intended by Tenant;
or if Tenant determines in its sole discretion that the cost of obtaining or retaining the same is commercially
unreasonable;
(c) by Tenant upon written notice to Landlord for any reason, at any time prior to the earlier of
commencement of construction by Tenant and six months from the Effective Date. .
(d) by Tenant upon sixty (60) days prior written notice to Landlord for any reason, so long as Tenant
pays Landlord a termination fee equal to three (3) months Rent, at the then current rate, provided, however, that no
such termination fee will be payable on account of the termination of this Agreement by Tenant under any one or
more of Paragraphs 5(b) Approvals, 6(a) Termination, 6(b) Termination, 6(c) Termination, 8 Interference, 11(d)
Environmental, 18 Severability, 19 Condemnation or 20 Casualty of this Agreement.
7. INSURANCE.
(a) Tenant will carry during the Term, at its own cost and expense, the following insurance: (i) "All
Risk" property insurance for its property's replacement cost; (ii) commercial general liability insurance with a
minimum limit of liability of $2,500,000 combined single limit for bodily injury or death/property damage arising
out of any one occurrence; and (iii) Workers' Compensation Insurance as required by law. The coverage afforded
by Tenant's commercial general liability insurance shall apply to Landlord as an additional insured, but only with
respect to Landlord's liability arising out of its interest in the Property. Tenant shall provide Landlord with
Certificates of Insurance evidencing the foregoing coverage within 30 days of full execution of this Agreement.
(b) Tenant shall have the right to self-insure with respect to any of the above insurance requirements.
8. INTERFERENCE.
(a) Where there are existing radio frequency user(s) on the Property, the Landlord will provide Tenant
with a list of all existing radio frequency user(s) on the Property to allow Tenant to evaluate the potential for
interference. Tenant warrants that its use of the Premises will not interfere with existing radio frequency user(s) on
2005 Northeast Land Lease
. ;the Property so disclosed by Landlord, as long as the existing radio frequency user(s) operate and continue to
`operate within their respective frequencies and in accordance with all applicable laws and regulations.
(b) Landlord will not grant, after the date of this Agreement, a lease, license or any other right to any
. • third party for the use of the Property, if such use may in any way adversely affect or interfere with the
Communication Facility, the operations of Tenant or the rights of Tenant under this Agreement. Landlord will
notify Tenant in writing prior to granting any third party the right to install and operate communications equipment
on the Property.
(c) Landlord will not use, nor will Landlord permit its employees, tenants, licensees, invitees or agents
to use, any portion of the Property in any way which interferes with the Communication Facility, the operations of
Tenant or the rights of Tenant under this Agreement. Landlord will cause such interference to cease within twenty-
four (24) hours after receipt of notice of interference from Tenant. Tenant will have the right, in addition to any
other rights that it may have at law or in equity, for Landlord's breach of this Agreement, to elect to enjoin such
interference or to terminate this Agreement upon notice to Landlord.
9. INDEMNIFICATION.
(a) Tenant agrees to indemnify, defend and hold Landlord harmless from and against any and all
injury, loss, damage or liability (or any claims in respect of the foregoing}, costs or expenses (including reasonable
attorneys' fees and court costs but excluding real property or personal property taxes) arising directly from the
installation, use, maintenance, repair or removal of the Communication Facility or Tenant's breach of any provision
of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Landlord, its
employees, agents or independent contractors.
(b) Landlord agrees to indemnify, defend and hold Tenant harmless from and against any and all
injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable
attorneys' fees and court costs but excluding real property or personal property taxes) arising directly from the
actions or failure to act of Landlord or its employees or agents, or Landlord's breach of any provision of this
Agreement, except to the extent attributable to the negligent or intentional act or omission of Tenant, its
employees, agents or independent contractors.
(c) Notwithstanding anything to the contrary in this Agreement, Tenant and Landlord each waives any
claims that each may have against the other with respect to consequential, incidental or special damages.
10. WARRANTIES.
(a) Tenant and Landlord each acknowledge and represent that it is duly organized, validly existing and
in good standing and has the right, power and authority to enter into this Agreement and bind itself hereto through
the party set forth as signatory for the party below. Tenant agrees to be bound by applicable local, state and federal
laws, ordinances and/or regulations.
(b) Landlord represents and warrants that: (i) Landlord solely owns the Property as a legal lot in fee
simple, or controls the Property by lease or license; (ii) the Property is not encumbered by any liens, restrictions,
mortgages, covenants, conditions, easements, leases, or any other agreements of record or not of record, which
would adversely affect Tenant's Permitted Use and enjoyment of the Premises under this Agreement; (iii) as long
as Tenant is not in default then Landlord grants to Tenant sole, actual, quiet and peaceful use, enjoyment and
possession of the Premises; (iv) Landlord's execution and performance of this Agreement will not violate any laws,
ordinances, covenants or the provisions of any mortgage, lease or other agreement binding on the Landlord; and (v)
if the Property is or becomes encumbered by a deed to secure a debt, mortgage or other security interest, Landlord
shall provide promptly to Tenant a mutually agreeable Subordination, Non-Disturbance and Attornment
Agreement.
11. ENVIItONMENTAL.
(a) Landlord represents and warrants that the Property is free of hazardous substances as of the date of
this Agreement, and, to the best of Landlord's knowledge, the Property has never been subject to any
contamination or hazardous conditions resulting in any environmental investigation, inquiry or remediation.
Landlord and Tenant agree that each will be responsible for compliance with any and all environmental and
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2005 Northeast Land Lease
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. ;industrial hygiene laws, including any regulations, guidelines, standards, or policies of any governmental
' authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental
or industrial hygiene condition or other matters as may now or at any time hereafter be in effect, that are now or
• • were related to that party's activity conducted in or on the Property.
(b) Landlord and Tenant agree to hold harmless and indemnify the other from, and to assume all
duties, responsibilities and liabilities at the sole cost and expense of the indemnifying party for, payment of
penalties, sanctions, forfeitures, losses, costs or damages, and for responding to any action, notice, claim, order,
summons, citation, directive, litigation, investigation or proceeding which is related to (i) the indemnifying party's
failure to comply with any environmental or industrial hygiene law, including without limitation any regulations,
guidelines, standards or policies of any governmental authorities regulating or imposing standards of liability or
standards of conduct with regard to any environmental or industrial hygiene conditions or matters as may now or
hereafter be in effect, or (ii) any environmental or industrial hygiene conditions that arise out of or are in any way
related to the condition of the Property and activities conducted by the party thereon, unless the environmental
conditions are caused by the other party.
(c) The indemnifications of this Paragraph 11 Environmental specifically include reasonable costs,
expenses and fees incurred in connection with any investigation of Property conditions or any clean-up,
remediation, removal or restoration work required by any governmental authority. The provisions of this
Paragraph 11 Environmental will survive the expiration or termination of this Agreement.
(d) In the event Tenant and/or Landlord becomes aware of any hazardous materials on the Property, or
any environmental or industrial hygiene condition or matter relating to the Property that, in either party's sole
determination, renders the condition of the Premises or Property unsuitable for Tenant's use, or if Tenant believes
that the leasing or continued leasing of the Premises would expose Tenant or Landlord to undue risks of government
action, intervention or third-party liability, Tenant will have the right to terminate the Agreement upon notice to
Landlord.
12. ACCESS. At all times throughout the Term of this Agreement, and at no additional charge to Tenant,
Tenant and its employees, agents, and subcontractors, will have twenty-four (24) hour per day, seven (7) day per
week pedestrian and vehicular access to and over the Property, from an open and improved public road to the
Premises, for the installation, maintenance and operation of the Communication Facility and any utilities serving
the Premises. Landlord grants to Tenant an easement for such access and Landlord agrees to provide to Tenant
such codes, keys and other instruments necessary for such access at no additional cost to Tenant. Upon Tenant's
request and at Tenant's expense, Landlord will execute a separate recordable easement evidencing this right. In the
event any public utility is unable to use the access or easement provided to Tenant then the Landlord agrees to
grant additional access or an easement either to Tenant or to the public utility, for the benefit of Tenant, at no cost
to Tenant.
13. REMOVAL/RESTORATION. All portions of the Communication Facility brought onto the Property by
Tenant will be and remain Tenant's personal property and, at Tenant's option, may be removed by Tenant at any
time during the Term. Landlord covenants and agrees that no part of the Communication Facility constructed,
erected or placed on the Premises by Tenant will become, or be considered as being affixed to or a part of, the
Property, it being the specific intention of the Landlord that all improvements of every kind and nature constructed,
erected or placed by Tenant on the Premises will be and remain the property of the Tenant and maybe removed by
Tenant at any time during the Term. Within one hundred twenty (120) days of the termination of this Agreement,
Tenant will remove all of Tenant's above-ground improvements and Tenant will, to the extent reasonable, restore
the Premises to its condition at the commencement of the Agreement, reasonable wear and tear and loss by
casualty or other causes beyond Tenant's control excepted. Notwithstanding the foregoing, Tenant will not be
responsible for the replacement of any trees, shrubs or other vegetation, nor will Tenant be required to remove
from the Premises or the Property any foundations or underground utilities.
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2005 Northeast Land Lease
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. :14. MAINTENANCE/UTILITIES.
' (a) Tenant will keep and maintain the Premises in good condition, reasonable wear and tear and
damage from the elements excepted. Landlord will maintain and repair the Property and access thereto, in good
-and tenantable condition, subject to reasonable wear and tear and damage from the elements.
(b) Tenant will be responsible for paying on a monthly or quarterly basis all utilities charges for
electricity, telephone service or any other utility used or consumed by Tenant on the Premises. In the event Tenant
cannot secure its own metered electrical supply, Tenant will have the right, at its own cost and expense, to
submeter from the Landlord. Landlord will fully cooperate with any utility company requesting an easement over,
under and across the Property in order for the utility company to provide service to the Tenant. Landlord will not
be responsible for interference with, interruption of or failure, beyond the reasonable control of Landlord, of such
services to be furnished or supplied by Landlord.
15. DEFAULT AND RIGHT TO CURE.
(a) The following will be deemed a default by Tenant and a breach of this Agreement: (i) non-
payment of Rent if such Rent remains unpaid for more than thirty (30) days or after receipt of written notice from
Landlord of such failure to pay; or (ii) Tenant's failure to perform any other term or condition under this
Agreement within forty-five (45) days after receipt of written notice from Landlord specifying the failure. No such
failure, however, will be deemed to exist if Tenant has commenced to cure such default within such period and
provided that such efforts are prosecuted to completion with reasonable diligence. Delay in curing a default will
be excused if due to causes beyond the reasonable control of Tenant. If Tenant remains in default beyond any
applicable cure period, Landlord will have the right to exercise any and all rights and remedies available to it under
law and equity.
(b) The following will be deemed a default by Landlord and a breach of this Agreement. Landlord's
failure to perform any term, condition or breach of any warranty or covenant under this Agreement within forty-
five (45) days after receipt of written notice from Tenant specifying the failure. No such failure, however, will be
deemed to exist if Landlord has commenced to cure the default within such period and provided such efforts are
• prosecuted to completion with reasonable diligence. Delay in curing a default will be excused if due to causes
beyond the reasonable control of Landlord. If Landlord remains in default beyond any applicable cure period,
Tenant will have the right to exercise any and all rights available to it under law and equity, including the right to
cure Landlord's default and to deduct the costs of such cure from any monies due to Landlord from Tenant.
16. ASSIGNMENT/SUBLEASE. Tenant will have the right to assign, sell or transfer its interest under this
Agreement without the approval or consent of Landlord, to Tenant's parent or member company or any affiliate or
subsidiary of, or partner in, Tenant or its parent or member company or to any entity which acquires all or
substantially all of the Tenant's assets in the market defined by the Federal Communications Commission in which
the Property is located by reason of a merger, acquisition, or other business reorganization. Upon notification to
Landlord of such assignment, transfer or sale, Tenant will be relieved of all future performance, liabilities and
obligations under this Agreement. Tenant shall have the right to sublease the Premises, in whole or in part,
without Landlord's consent. Tenant may not otherwise assign this Agreement without Landlord's consent,
Landlord's consent not to be unreasonably withheld, conditioned or delayed.
17. 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:
If to Tenant: c/o Cingular Wireless LLC
Attn: Network Real Estate Administration
Re: Cell Site R0391 / Pulaski / FA#10103218
6100 Atlantic Boulevard
Norcross, Georgia 30071
2005 Nottheast Land Lease
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• With a copy to: Cingular Wireless LLC
Attn.: Legal Department
Re: Cell Site R0391 / Pulaski / FA#10103218 (VA-WV)
5 Wood Hollow Rd
Parsippany, NJ 07054
If to Landlord: The Town of Pulaski
P.O. Box 660
Pulaski, VA 24301
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.
18. SEVERABILITY. If any term or condition of this Agreement is found unenforceable, the remaining
terms and conditions will remain binding upon the parties as though said unenforceable provision were not
contained herein. However, if the invalid, illegal or unenforceable provision materially affects this Agreement then
the Agreement may be terminated by either party on ten (10) business days prior written notice to the other party
hereto.
19. CONDEMNATION. In the event Landlord receives notification of any condemnation proceedings
affecting the Property, Landlord will provide notice of the proceeding to Tenant within forty-eight (48) hours. If a
condemning authority takes all of the Property, or a portion sufficient, in Tenant's sole determination, to render the
Premises unsuitable for Tenant, this Agreement will terminate as of the date the title vests in the condemning
authority. The parties will each be entitled to pursue their own separate awards in the condemnation proceeds,
which for Tenant will include, where applicable, the value of its Communication Facility, moving expenses,
prepaid Rent, and business dislocation expenses, provided that any award to Tenant will not diminish Landlord's
recovery. Tenant will be entitled to reimbursement for any prepaid Rent on a prorata basis.
20. CASUALTY. Landlord will provide notice to Tenant of any casualty affecting the Property within forty-
eight (48) hours of the casualty. If any part of the Communication Facility or Property is damaged by fire or other
casualty so as to render the Premises unsuitable, in Tenant's sole determination, then Tenant may terminate this
Agreement by providing written notice to the Landlord, which termination will be effective as of the date of such
damage or destruction. Upon such termination, Tenant will be entitled to collect all insurance proceeds payable to
Tenant on account thereof and to be reimbursed for any prepaid Rent on a prorata basis. If notice of termination is
given, or if Landlord or Tenant undertake to rebuild the Communications Facility, Landlord aggress to use its
reasonable efforts to permit Tenant to place temporary transmission and reception facilities on the Property at no
additional Rent until such time as Tenant is able to secure a replacement transmission location or the
reconstruction of the Communication Facility is completed.
21. WAIVER OF LANDLORD'S LIENS. Landlord waives any and all lien rights it may have, statutory or
otherwise, concerning the Communication Facility or any portion thereof except when Tenant is in default. The
Communication Facility shall be deemed personal property for purposes of this Agreement, regardless of whether any
portion is deemed real or personal property under applicable law, and Landlord consents to Tenant's right to remove
all or any portion of the Communication Facility from time to time in Tenant's sole discretion and without Landlord's
consent.
• 22. TAXES. Landlord shall be responsible for payment of all ad valorem taxes levied upon the lands,
improvements and other property of Landlord. Tenant shall be responsible for all taxes levied upon Tenant's
2005 Northeast Land Lease
. ;leasehold improvements (including Tenant's equipment building and tower) on the Leased Property. Landlord
shall provide Tenant with copies of all assessment notices on or including the Leased Property immediately upon
receipt, but in no event less than thirty (30) days after receipt by Landlord. Tenant shall have the right to contest,
• • in good faith, the validity or the amount of any tax or assessment levied against the Leased Property by such
appellate or other proceedings as may be appropriate in the jurisdiction, and may defer payment of such
obligations, pay same under protest, or take such other steps as Tenant may deem appropriate. This right shall
include the ability to institute any legal, regulatory or informal action in the name of Landlord, Tenant, or both,
with respect to the valuation of the Leased Property. Landlord shall cooperate in the institution and prosecution of
any such proceedings and will execute any documents required therefore. The expense of any such proceedings
shall be borne by Tenant and any refunds or rebates secured as a result of Tenant's action shall belong to Tenant.
23. SALE OF PROPERTY. If Landlord, at any time during the Term of this Agreement, decides to sell,
subdivide or rezone any of the Premises, all or any part of the Property or Surrounding Property, to a purchaser
other than Tenant, Landlord shall promptly notify Tenant in writing, and such sale, subdivision or rezoning shall
be subject to this Agreement and Tenant's rights hereunder. Landlord agrees not to sell, lease or use any areas of
the Property or Surrounding Property for the installation, operation or maintenance of other wireless
communications facilities if such installation, operation or maintenance would interfere with Tenant's Permitted
Use or communications equipment as determined by radio propagation tests performed by Tenant in its sole
discretion, any such testing to be at the expense of Landlord or Landlord's prospective purchaser, and not Tenant.
If the radio frequency propagation tests demonstrate levels of interference unacceptable to Tenant, Landlord shall
be prohibited from selling, leasing or using any areas of the Property or the Surrounding Property for purposes of
any installation, operation or maintenance of any other wireless communications facility or equipment. Landlord
shall not be prohibited from the selling, leasing or use of any of the Property or the Surrounding Property for non-
wireless communication use. In the event the Property is transferred, the new landlord shall have a duty at the time
of such transfer to provide Tenant with a completed IRS Form W-9, or its equivalent, and other related paper work
to effect a transfer in Rent to the new landlord. The provisions of this Paragraph 23 shall in no way limit or impair
the obligations of Landlord under Paragraph 8 above.
24. MISCELLANEOUS.
(a) Amendment/Waiver. This Agreement cannot be amended, modified or revised unless done in
writing and signed by an authorized agent of the Landlord and an authorized agent of the Tenant. No provision
may be waived except in a writing signed by both parties.
(b) Memorandum/Short Form Lease. Either party will, at any time upon fifteen (15) business days
prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum or
Short Form of Lease. Either party may record this Memorandum or Short Form of Lease at any time, in its
absolute discretion.
(c) Bind and Benefit. The terms and conditions contained in this Agreement will run with the
Property and bind and inure to the benefit of the parties, their respective heirs, executors, administrators,
successors and assigns.
(d) Entire Agreement. This Agreement and the exhibits attached hereto, all being a part hereof,
constitute the entire agreement of the parties hereto and will supersede all prior offers, negotiations and agreements
with respect to the subject matter of this Agreement.
(e) Governing Law. This Agreement will be governed by the laws of the state of Virginia in which
the Premises are located, without regard to conflicts of law.
(f) Interpretation. Unless otherwise specified, the following rules of construction and interpretation
apply: (i) captions are for convenience and reference only and in no way define or limit the construction of the
terms and conditions hereof; (ii) use of the term "including" will be interpreted to mean "including but not limited
to"; (iii) whenever a party's consent is required under this Agreement, except as otherwise stated in the Agreement
or as same may be duplicative, such consent will not be unreasonably withheld, conditioned or delayed; (iv)
• exhibits are an integral part of the Agreement and are incorporated by reference into this Agreement; (v) use of the
2005 Northeast Laud Lease
,~ terms "termination" or "expiration" are interchangeable; and (vi) reference to a default will take into consideration
' any applicable notice, grace and cure periods.
• (g) Estoppel. Either party will, at any time upon twenty (20) business days prior written notice from
the other, execute, acknowledge and deliver to the other a statement in writing (i) certifying that this Agreement is
unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying this
Agreement, as so modified, is in full force and effect) and the date to which the Rent and other charges are paid in
advance, if any, and (ii) acknowledging that there are not, to such party's knowledge, any uncured defaults on the
part of the other party hereunder, or specifying such defaults if any are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of the Premises. The requested party's
failure to deliver such a statement within such time will be conclusively relied upon by the requesting party that (i)
this Agreement is in full force and effect, without modification except as may be properly represented by the
requesting party, (ii) there are no uncured defaults in either party's performance, and (iii) no more than one
month's Rent has been paid in advance.
(h) No Electronic Signature/No Option. The submission of this Agreement to any party for
examination or consideration does not constitute an offer, reservation of or option for the Premises based on the
terms set forth herein. This Agreement will become effective as a binding Agreement only upon the handwritten
legal execution, acknowledgment and delivery hereof by Landlord and Tenant.
(i) Attorney's Fees, Mediation and Arbitration. If a dispute arises under this Agreement between
the parties hereto, and the dispute cannot be settled by negotiation between the parties, the parties agree to enter
into mediation in a good faith attempt to settle such dispute, which mediation shall be conducted under the rules of
the American Arbitration Association ("AAA") Commercial Mediation Rules, or the successor to such rules. If
mediation is unsuccessful, then the parties agree to binding arbitration to be held in Pulaski, Virginia, or such other
location as may be agreed to by the parties, to be conducted under the AAA Commercial Arbitration Rules, or the
successor to such rules. Judgment on an award rendered in such arbitration may be entered in any court having
jurisdiction thereof. The costs of such arbitration shall be borne by the non prevailing party. If an arbitrator and/or
mediator cannot be agreed upon by the parties, then the parties agree that the Circuit Court of the County of
Pulaski shall select the arbitrator and/or mediator.
[SIGNATURES APPEAR ON THE NEXT PAGE]
2005 Northeast Land Lease
' TENANT ACKNOWLEDGMENT
•
STATE OF VIRGINIA )
ss:
COUNTY OF HENRICO )
On the ~ ~ day of ~J "`~` Y ~/`
2007, before me personally appeared Tina L.
Harris, and acknowledged under oath that she is the Manager, Real Estate and Construction of New Cingular
Wireless PCS, LLC, the Tenant named in the attached instrument, and as such was authorized to execute this
instrument on behalf of the Tenant.
No Public:
My Commission Expires: My Commission Exelr@'
December 31, 2008
LANDLORD ACKNOWLEDGMENT
•
STATE OF VIRGINIA )
ss:
COUNTY OF PULASKI )
On the day of ~ 2007, before me personally appeared
,._._~
J J . , and acknowledged under oath that he/she is the
v.1
~ ~ ~ ~ ~}nl (~q~, ~ of Town of Pulaski, the Landlord named in the attached
instrument, and as such was authorized to execute this instrument on behalf of the Landlord.
Notary Public: ~c..~ CZu~ S
My Commission Expires: gT~l1 q
•
11
2005 Nottheast Land Lease
Revised 03/13/07
' EXHIBIT 1
• DESCRIPTION OF PREMISES
Page 1 of 1
to the Agreement dated , 2007, by and between the Town of
Pulaski, a municipal government, as Landlord, and New Cingular Wireless, PCS, LLC, a Delaware
limited liability company, as Tenant.
The Premises are described and/or depicted as follows:
A lease parcel measuring approximately 1,800 square feet and being a portion of the tract described in
Deed found in County of Pulaski Instrument No. 0400066449, together with a 20 foot wide non-exclusive
easement for ingress/egress and utility purposes as further depicted on the attached Lease Exhibits LE-1,
LE-2 and LE-3:
•
Notes:
1. This Exhibit may be replaced by a land survey and/or construction drawings of the Premises once received by
Tenant.
2. Any setback of the Premises from the Property's boundaries shall be the distance required by the applicable
governmental authorities.
3. Width of access road shall be the width required by the applicable governmental authorities, including police
and fire departments.
4. The type, number and mounting positions and locations of antennas and transmission lines are illustrative only.
Actual types, numbers and mounting positions may vary from what is shown above.
•
•
•.
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525 RIDGE AVE
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RAW LAND
GATE: 9/24 f 05
T NUMBER:
LE-3 of 3
Revised 03/13/07
Prepared by
Bechtel Communications
4805 Lake Brook Drive, Suite 115
Glen Allen, VA 23060
Return to•
Re: Cell Site RO391 / Pulaski
State: Virginia
County: Pulaski
MEMORANDUM OF LEASE
This Memorandum of Lease is entered into on this ~ ~ day of ~/~~ • G , 2007, by
and between the Town of Pulaski, a municipal government, having a mailing address of P.O. Box 660,
Pulaski, VA 24301 (hereinafter referred to as "Landlord"} and New Cingular Wireless PCS, LLC a
Delaware limited liability company, having a mailing address of 6100 Atlantic Boulevard, Norcross, GA
30071 (hereinafter referred to as "Tenant").
1. Landlord and Tenant entered into a certain Lease Agreement ("Agreement") on the y~
day of ~.~ ~ L 2007, for the purpose of installing, operating and
maintaining a communications facility and other improvements. All of the foregoing are set
forth in the Agreement.
2. The initial lease term will be five (5) years ("Initial Term") commencing on the Effective
Date of the Agreement, with four (4) successive five (5) year options to renew.
3. The portion of the land being leased to Tenant (the "Premises") is described in Exhibit 1
annexed hereto.
4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or
construed as amending or modifying, any of the terms, conditions or provisions of the
Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between
the provisions of this Memorandum of Lease and the provisions of the Agreement, the
provisions of the Agreement shall control. The Agreement shall be binding upon and inure
to the benefit of the parties and their respective heirs, successors, and assigns, subject to the
provisions of the Agreement.
• [SIGNATURES APPEAR ON TIC NEXT PAGE]
Revised 03/13/07
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and
• year first above written.
"LANDLORD"
Town of Pulaski
a municipal government
By: ~°" ~ ~ ,Y'
Print Name: ~i^~'
Its: Gy"'^ °!~`" +iT
Date: o
"TENANT"
New Cingular Wireless PCS, LLC
a Delaware limited liab' ity company
G
Print Name: I L. HARRIS
Its: TRUCTION
Date: i ~
~~
[ACKNOWLEDGEMENTS APPEAR ON NEXT PAGE]
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TITLE: LEASE
EXH IBIT
SITE wFOR0391 B
PULASKf
525 RIDGE AVE
PULASKI, VA
24301
RAW LAND
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VISIT GATE: 9~24~05
SHEET NUMBER:
LE-3 of 3
i
I, Patricia Cruise, Clerk of Council, certify that the forgoing Ordinance
2007-06 Authorizing Contract with New Cingular Wireless PCS, LLC is a
true and correct copy as adopted by the Pulaski Town Council at their
regular meeting on April 3, 2007.
_~
Patricia Cruise, Clerk of Council
TClctordinancelcertification 2007-06