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Tmobile.lease.final.post.July

Tmobile.lease.final.post.July

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Published by Cheryl Miller
highlighted with comments that we wonder if the school board considered before signing over the health and safety of our children for the next 30 years.
highlighted with comments that we wonder if the school board considered before signing over the health and safety of our children for the next 30 years.

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Published by: Cheryl Miller on Sep 11, 2011
Copyright:Attribution Non-commercial

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01/09/2012

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SITE LEASE
THIS SITE LEASE (this “Lease”) is by and between the DeKalb County School District, acting by and through the Board of Education of DeKalb County, Georgia (“Landlord”) and T-Mobile South LLC, a Delaware limited liability company(“Tenant”).1. Premises and Easements.(a)
 
Landlord hereby leases to Tenant the property (the “Premises”), described as Leased Premises in the attached Exhibit A, whichPremises are located on Landlord’s property having an address of _______________, more particularly described as the Propertyin the attached Exhibit B together with the improvements thereon, (collectively, the “Property”), on the terms and conditions setforth herein together with a non-exclusive easement for pedestrian and vehicular ingress and egress to and from the Premises(which easement shall be subject to Landlord’s relocation rights described in Section 1(b) hereof) and a non-exclusive easementfor the installation and maintenance of utilities, cables and conduits over, under and across the Property to and from the Premisesin the location or locations more particularly described in Exhibit A attached hereto . The easement rights granted herein (the“Easements”) shall expire on the date which is the sixtieth (60
th
) day after the date on which this Lease expires or soonerterminates.(b)
 
Landlord reserves the right from time to time during the Initial Term and any Renewal Term to relocate Tenant’s easement foringress and egress to and from the Premises, subject, however, to each of the following:(i) Landlord shall provide Tenant at least ninety (90) days’ prior written notice of such relocation;(ii) Tenant shall maintain the right of continuous and effective access to and from the Premises in accordance with Section1(a) hereof during the period of such re-location;(iii) The costs, if any, for re-locating the easement shall be borne by Landlord; and(iv)
 
Landlord and Tenant shall cooperate with the other to execute and deliver a recordable Memorandum of Amendmentof Lease confirming such relocated easement area.2. Consideration. Upon the full execution of this Lease by the parties hereto, Tenant shall pay to Landlord as a contractconsideration fee, the amount of two thousand dollars ($2,000.00), which is non-refundable in all events and which shall not apply as Rent.3. Due Diligence Period.a.
 
From the Effective Date through and including the date which is six (6) months after the Effective Date (the “Due DiligencePeriod”), Tenant shall have a right of access to the Property to perform any surveys, soil tests, and other engineering proceduresor environmental investigations (“Tests”) on the Property deemed necessary or appropriate by Tenant to evaluate the suitabilityof the Property for the uses contemplated under this Lease. In the event of any damage to, or alteration of, the Property causedby Tenant’s activities under this Section 1(c), Tenant shall repair or restore the affected area or areas to the condition thereof prior to such damage or alteration. Tenant hereby agrees to indemnify and hold Landlord harmless for any and all claims, losses,or damages incurred or suffered by Landlord as a result of any damage to person (including death) or property caused by saidTests. The foregoing indemnification shall survive any termination, cancellation or expiration of this Lease. At any time prior tothe expiration of the Due Diligence Period Tenant shall have the right in its sole and absolute discretion to terminate this Leaseby sending written notice of termination to Landlord. Thereafter, neither Landlord nor Tenant shall have any further rights orobligations under this Lease except as otherwise provided herein.b.
 
Prior to the expiration of the Due Diligence Period, Tenant shall have the one-time right to extend the Due Diligence Period forone (1) additional six (6) month period by delivering written notice to Landlord of such election along with two thousand dollars($2,000.00) as additional contract consideration, which is non-refundable in all events and which shall not apply as Rent.c.
 
During the Due Diligence Period and during the Initial Term and any Renewal Term (as those terms are defined below) of thisLease, Landlord agrees to cooperate with Tenant in obtaining, at Tenant’s expense, all licenses and permits or authorizationsrequired for Tenant’s use of the Premises (as defined below) from all applicable government and/or regulatory entities(including, without limitation, zoning and land use authorities, and the Federal Communications Commission (“FCC”)(“Governmental Approvals”), including all land use and zoning permit applications, and Landlord agrees to cooperate with andto allow Tenant, at no cost to Landlord, to obtain a title report, zoning approvals and variances, land-use permits. During theDue Diligence Period, and during the Initial Term or any Renewal Term of this Lease, Landlord agrees that it will not interferewith Tenant’s efforts to secure other licenses and permits or authorizations that relate to other property.4. Term. The initial term of this Lease shall be five (5) years commencing on the Rent Commencement Date (defined below),and terminating at midnight on the last day of the initial term (the “Initial Term”). Tenant shall have the right to extend this Lease for five (5)additional and successive five-year terms (each a "Renewal Term") on the same terms and conditions as set forth herein. This Lease shallautomatically renew for each successive Renewal Term unless Tenant notifies Landlord, in writing, of Tenant's intention not to renew this Lease, atleast thirty (30) days prior to the expiration of the Initial Term or any Renewal Term. If Tenant shall remain in possession of the Premises at theexpiration of this Lease or any Renewal Term without a written agreement, such tenancy shall be deemed a month-to-month tenancy at a rentalamount equal to one hundred fifty percent (150%) and otherwise under the same terms and conditions of this Lease.5. Rent.(a) Tenant shall pay Landlord, without notice or demand of any kind, in yearly installments in advance rent in the amount of sixteenthousand eight hundred dollars and no/100 dollars ($16,800.00) per year (“Rent”). Rent will be increased by four thousand eight hundred and
 
 
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no/100ths dollars ($4,800.00) per year for each co-locator. In event this Lease does not terminate pursuant to Section 3 above, Rent shall becomedue and payable upon the earlier to occur of (i) the date of this issuance of the permit for the construction of Tenant’s improvements on the Premisesor (ii) the first day after the expiration of the Due Diligence Period (such earlier date being the “Rent Commencement Date”). Thereafter Rent willbe payable annually in advance by the fifth day following anniversary of Rent Commencement Date to Landlord at the address specified in Section12 below. Landlord, its successors, assigns and/or designee, if any, will submit to Tenant any documents required by Tenant in connection with thepayment of Rent, including, without limitation, an IRS Form W-9.(b) In addition to the annual Rent amounts, on the Rent Commencement Date Tenant will pay a one-time fee to ________________of twenty five thousand dollars ($25,000.00), which is non-refundable in all events and which shall not apply as Rent. In addition prior to theinstallation of each co-locator, if any, Tenant shall pay to ________________, as additional contract consideration fee, twenty five thousand dollars($25,000.00), which is non-refundable in all events and which shall not apply as Rent.(b) During the Initial Term and any Renewal Terms, Rent shall be adjusted, effective on the first day of each year of the Initial orRenewal Term, and on each such subsequent anniversary thereof, to an amount equal to three percent (3%) of the Rent in effect immediately priorto the adjustment date.6. Permitted Use. Tenant shall use the Premises for the purpose of installing, maintaining, and operating the “Antenna Facilities”(as hereinafter defined) and uses incidental thereto and for no other purposes.7. Interference. Tenant shall not use the Premises in any way which interferes with the use of the Property by Landlord or lesseesor licensees of Landlord with rights in the Property on the Effective Date. Such interference shall be deemed a material breach by Tenant, who shall,upon written notice from Landlord, be responsible for terminating said interference at Tenant’s sole cost and expense. If such interference cannot beeliminated within five (5) days after receiving Landlord’s written notice of the interference, Tenant shall immediately cease operating the componentor components of the Antenna Facilities (defined below) causing such interference and shall not reactivate operation thereof, except intermittentoperation solely for the purpose of testing, until the interference has been eliminated. If such interference continues to occur thirty (30) days afterTenant has received Landlord’s written notice, Landlord, at its option, may terminate this Lease immediately upon written notice to Tenant.8. Improvements; Utilities; Access.(a)
 
Tenant shall have the right, at its expense, to erect and maintain on the Premises improvements, personal property and facilitiesnecessary to operate its communications system, including, without limitation, radio transmitting and receiving antennas,microwave dishes, tower and base, equipment shelters and/or cabinets and related cables and utility lines and a location basedsystem, as such location based system may be required by any county, state or federal agency/department, including, withoutlimitation, additional antenna(s), coaxial cable, base units and other associated equipment (collectively, the “AntennaFacilities”).(b)
 
Tenant’s construction and installation of the Antenna Facilities shall be made according to plans (the “Plans”) approved byLandlord in writing in advance, which approval shall not be unreasonably withheld. The Plans shall include, but not be limitedto, specifications concerning landscaping, site preparation and construction time lines. In connection therewith, Landlord shallrespond to Tenant’s written request for approval of the Plans within fifteen (15) business days after receipt thereof with anydisapproval, objections or proposed modifications. If Landlord does not so respond within fifteen (15) business days, then suchPlans shall be deemed approved by Landlord. Tenant shall not begin any installation or construction of the Antenna Facilitiesuntil Landlord has approved Tenants Plans or such Tenant Plans are deemed approved pursuant to this Section 8(b). Tenant, atits expense, shall use appropriate means of restricting access to the Antenna Facilities, including, without limitation, theconstruction of a fence. Tenant shall, at Tenant’s expense, put, keep and maintain Premises, including, without limitation, theAntenna Facilities now or hereafter located on the Premises, in good condition and repair during the term of this Lease, installand maintain the Antenna Facilities in accordance with good engineering practices and shall conform, when applicable, with theNational Electric Safety Code and all other applicable federal, state and local laws and regulations. Tenant shall promptlyreplace any plantings which die during the first year of this Lease. At reasonable times and following reasonable advance noticeto tenant, Tenant shall permit examination of the Premises, including, without limitation, the Antenna Facilities, by any dulyauthorized representative of Landlord; provided however, that Landlord’s representative shall ascend the tower or enter anyequipment of Tenant. Landlord hereby agrees that it shall not injure the Antenna Facilities or interfere with or disrupt theoperation thereof in conducting any such examination.(c)
 
During construction of the Antenna Facilities, Tenant shall have, and Landlord hereby grants to Tenant, a temporary constructioneasement to use all or portions of the Property identified on Exhibit A as may be reasonably necessary for the storage of materials and staging of construction; provided, however, that (i) Tenant shall not unreasonably interfere with Landlord’scustomary operations on the Property during Tenant’s utilization of such temporary easement and (ii) Landlord shall have theright upon prior written notice to Tenant to re-locate such temporary easement to another location on the Property reasonablyconvenient to the Premises. Tenant further agrees that any equipment or materials located on or about the Property forconstruction of the Antenna Facilities shall be secured and stored in a safe manner and that Tenant shall promptly replace orrepair any damage to the Property or improvements thereon caused as a result of Tenant’s construction activities. Tenant andLandlord shall mutually agree upon the dates and hours during which Tenant may use a crane on the Premises or the Property.Notwithstanding the foregoing, Tenant agrees that it will not move, transport or suspend all or any portion of the AntennaFacilities by crane while school or any extra-curricular activities are being conducted on the Property.(d)
 
Tenant’s use and occupancy of the Premises and all work by Tenant shall be performed in compliance with applicable laws andordinances. Tenant is not authorized to contract for or on behalf of Landlord for work on, or the furnishing of materials to the
 
 
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Property or any portion thereof, and Tenant shall pay any and all subcontractors, material men, mechanics or laborers promptlyfor any work or materials claimed to have been furnished at the instance of Tenant on the Property. Tenant shall promptlydischarge , or otherwise cause the removal of, any liens filed against the Property by any person or entity claiming to haveperformed work or provided materials by, through, under or on behalf of Tenant.(e)
 
Following the completion of its construction and installation, Tenant shall not relocate, or make any Major Modification (asdefined below) to, the tower or any equipment storage structure without Landlord’s prior written consent, which consent may bewithheld in Landlord’s sole discretion. As used herein, the term “Major Modification” shall mean a significant structuralalteration to the tower or structure (such as, by way of example and not limitation, adding of heights to the tower or expandingof, or adding a story to , the structure) or other alteration or addition resulting in material change in the visual appearance of theAntenna Facilities (such as, by way of example and not limitation, the conversion of the tower into a “tree”, “bell tower” orlattice structure or material change in the color of the Antenna Facilities. A Major Modification shall not include the adding,decreasing, replacing, or upgrading of antennas or antenna arrays on the tower (or of related cable or other antenna accessories)or cabinets or other equipment inside the Premises, provided that the same do not lessen the safety of the Antenna Facilities. TheAntenna Facilities shall remain the exclusive property of Tenant and shall not be considered fixtures.(f)
 
All additions or modifications to the Premises or the Antenna Facilities other than a Major Modification shall be subject toLandlord’s approval, which shall not be unreasonably withheld. Prior to construction or installation of any such additions ormodification, Tenant shall provide Landlord copies of all reasonably required plans and drawings related to such additions ormodifications (such plans and drawings to include, but not be limited to, specifications concerning landscaping, site preparationand installation time lines), and Landlord shall respond within thirty (30) days after the receipt thereof with any disapproval,objections or proposed modifications or such plans shall be deemed approved by Landlord.(g)
 
Upon termination or expiration of this Lease, Tenant shall, at its sole cost and expense, remove the Antennae Facilities andreturn the Premises to Landlord in good, usable condition as existed prior to the Effective Date. The obligations of Tenant in thisSection 8(g) shall survive the termination or expiration of this Lease.(h)
 
Tenant shall have the right to install utilities (including, but not limited to, the installation of emergency power generators), atTenant’s expense within the areas depicted on Exhibit A. Landlord agrees to use reasonable efforts in assisting Tenant to acquirenecessary utility service. Tenant shall obtain its utility service directly from the provider or providers thereof, separately metersuch service and promptly make payment thereof. If at any time during the term of this Lease, Tenant shares use of any utilityservice with Landlord, or any of Landlord’s other tenants or licensees, then Tenant shall pay the periodic charges for all suchutilities used in connection with the Property at the rate charged by the servicing utility.(i)
 
Tenant shall have 24-hours-a-day, 7-days-a-week access to the Premises at all times during the Initial Term of this Lease and anyRenewal Term, at no charge to Tenant.(j)
 
Tenant shall maintain and repair the Easements, at its sole expense.9. Termination. Except as otherwise provided herein, this Lease may be terminated, without any penalty or further liability asfollows:(a) upon thirty (30) days’ written notice by Landlord if Tenant fails to cure a default for payment of amounts due under this Leasewithin such thirty (30) day period;(b) upon one (1) year advance written notice by Landlord if Landlord determines in its sole discretion that the Premises are neededfor educational purposes; provided, however, Landlord shall make commercially reasonable efforts to provide an alternative site on the Property forrelocation of the Premises.(c) upon thirty (30) days prior written notice by Tenant if, after exercising reasonable, diligent and good faith efforts to obtain andmaintain the following, Tenant is unable obtain or maintain any license (including, without limitation, an FCC license), permit or any GovernmentalApproval necessary to the installation and/or operation of the Antenna Facilities or Tenant’s business;(d) immediately upon written notice by Tenant if the Premises or the Antenna Facilities are destroyed or damaged so as in Tenant’sreasonable judgment to substantially and adversely affect the effective use of the Antenna Facilities; provided, however, Tenant shall not be entitledto the reimbursement of any Rent prepaid by Tenant.(e) at the time title to the Property transfers to a condemning authority pursuant to a taking of all or a portion of the Propertysufficient in Tenant’s determination to render the Premises unsuitable for Tenant’s use. In the event of any taking under the power of eminentdomain, Tenant shall not be entitled to any portion of the award paid for the taking and Landlord shall receive the full amount of such award. Tenanthereby expressly waives any right or claim to all or any portion of such award.(f) upon ninety (90) days prior written notice by Tenant to Landlord, if Tenant determines that the Property, Premises, or AntennaFacilities are inappropriate or unnecessary for Tenant’s operations for economic or technological reasons; provided, however, that if Tenantterminates pursuant to this Subsection 9(f), Landlord shall retain any prepaid Rent.10. Default and Right to Cure. Notwithstanding anything contained herein to the contrary and without waiving any other rightsgranted to it at law or in equity, each party shall have the right, but not the obligation, to terminate this Lease on written notice pursuant to Section12 hereof, to take effect immediately, if the other party fails to perform any covenant or commits a material breach of this Lease and fails todiligently pursue a cure thereof to its completion after thirty (30) days’ written notice specifying such failure of performance or default.

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