Loading...
HomeMy WebLinkAboutNew Cingular Wireless/Util/Water Tower and Ground Lease AgreementTenant's Site Name/No: Carmel City/IN0446 Tenant's Fixed Asset No.: 10074700 FIRST AMENDMENT TO WATER TOWER ,�QRODF AND GROUND LEASE AGREEMENT ° d� This First Amendment to Waterower d Ground Lease Agreement ("First Amendment") is entered into this 1a�1 day of r ► , 2017, by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety ("Landlord"), and New Cingular Wireless PCS, LLC, a Delaware limited liability company, successor -in -interest to Ameritech Wireless Communications, Inc. ('Tenant'). WHEREAS, on April 16, 1997, Landlord and Tenant entered into that certain Water Tower and Ground Lease Agreement ("Lease") whereby Landlord leased to Tenant tower and land space located at 211 2°d Avenue SW, Carmel, Indiana, as more particularly described in Exhibit A & B to the Lease (the "Leased Property"); and WHEREAS, Landlord and Tenant entered into a Memorandum of Water Tower and Ground Lease Agreement recorded June 18, 1998 as Instrument No. 9809833028 in the office of the Hamilton County Recorder (the "Memorandum") pursuant to which an access easement area was identified on Exhibit A attached thereto for the benefit of Tenant (the "Original Access Easement Area"); and WHEREAS, Tenant now desires to replace a portion of its antenna array and add related equipment to the Leased Property and Landlord is amenable to such replacement and addition; and WHEREAS, due to the development of the Original Access Easement Area, Landlord is relocating the Original Access Easement Area pursuant to Section 7.5 of the Lease. NOW, THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, Landlord and Tenant agree as follows: 1. Capitalized Terms. Capitalized terms used but not specifically defined in this Amendment shall have the meanings ascribed to them in the Lease, unless a different meaning is clearly required by the context hereof. 2. Additional Improvements. Tenant will install certain additional equipment on the Leased Property as described in Exhibit D attached hereto and incorporated herein (the "Additional Improvements"). Exhibit D documents the equipment Tenant is permitted to install on Landlord's Water Tower. Tenant hereby represents and warrants that (i) the Additional Improvements are all located within the Leased Property; (ii) the installation of the Additional Improvements shall be done in a good and workmanlike manner and as otherwise required under the Lease; (iii) as further described in Paragraph 6 of this First Amendment, Tenant shall provide advance written notice to Landlord of the installation of the Additional Improvements, including an installation schedule; (iv) Tenant shall obtain all necessary consents, approvals and permits for the installation of the Additional Improvements, including a tower load analysis and structural analysis as may be required by Landlord; (v) Tenant shall immediately repair any damage to the Leased Property, the Land and any other property of Landlord, damaged as a result of the installation of the Additional Improvements to the condition which existed prior to such damage; (vii) Tenant shall remove all of Tenant's unused equipment while installing the Additional Improvements, including any cabling from the Leased Property; and (viii) Tenant's installation of the Additional Improvements shall be in accordance with the terms of the Lease. The Additional Improvements shall be part of the Installation for purposes of the Lease and this First Amendment. Tenant's Site Name/No: Carmel City/IIN0446 Tenant's Fixed Asset No.: 10074700 3. Monon Trail. Landlord has constructed a linear park and recreational trail (the "Trail'), which is adjacent to the Land, but is not part of the Land. Tenant understands and recognizes that the Trail is open to the public and that Tenant has no right to use, or interfere with access to, the Trail as part of the installation of the Additional Improvements. 4. Maintenance of Additional Improvements. Tenant shall be responsible for the operation, maintenance and repair of the Additional Improvements as provided in the Lease. 5. Access to the Premises. Due to development of the Original Access Easement Area, it is necessary for Landlord to delete the Original Access Easement Area described in the Memorandum and relocate such access easement area (the "New Access Easement Area") as allowed under Section 7.5 of the Lease. Until such time as Landlord identifies the New Access Easement Area, Tenant may access the Leased Property from Third Avenue over and across Landlord's property as shown on Exhibit E attached hereto (the "Temporary Access"). Tenant's use of the Temporary Access Area and the New Access Easement Area shall be in accordance with the terms of the Lease. 6. Notice by Tenant of Activities Within The Leased Property or the Land. Tenant shall provide fifteen (15) days advance written notice to the Office of the Mayor, City Hall, One Civic Square, Carmel, Indiana 46032, (317) 571-2401, and the Director of Utilities, 760 Third Avenue SW, Carmel, Indiana 46032, (317) 571-2443, prior to entering on the Leased Property or the Land to conduct any activities on the Leased Property or the Land in connection with Tenant's exercise of its rights under this First Amendment or the Lease, including but not limited to, Tenant's installation, use, operation and repair of the Installation and/or the Additional Improvements. Such notice shall include a description of the type and location of the activities and an anticipated timeframe for completion of such activities. Tenant shall coordinate and time such activities with Landlord in order to minimize any interference with the use of the Leased Property and the Land. In the event of bona fide unscheduled and unforeseen emergency repairs, Tenant shall provide as much notice as possible to Landlord, by contacting telephonically and by facsimile transmission to the Director of Utilities, 760 Third Avenue S.W., Carmel, Indiana 46032, (317) 571-2443 and the Chief of Police at Carmel Police Headquarters at 3 Civic Square, Carmel, Indiana 46032, (317) 571-2500. 7. Indemnification and Insurance. In addition to indemnity provided in the Lease, including but not limited to Section 9 and Section 27.3, Tenant shall indemnify, defend and hold harmless Landlord, its officers, officials, employees, attorneys and agents, from and against any loss, damages, injuries or liability, arising directly or indirectly, in whole or in part, from Tenant's exercise of its rights under this First Amendment. In addition to the insurance required under Section 9 of the Lease, Tenant shall procure and maintain in full force and effect during the term of the Lease, with an insurer licensed, authorized or permitted to do business the State of Indiana, such as is necessary for the protection of City and Tenant from claims for damages under workers' compensation and occupational disease; for injuries including, but not limited to, bodily injury, sickness, disease or death of or to any of Tenant's officers, and employees; and, for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom. In addition to insurance required under Section 9.1 of the Lease, coverage amounts shall be in the amounts set forth in Exhibit F attached hereto. In the event of a conflict between the insurance coverages or coverage amounts set forth in the Lease and this First Amendment, the coverages and amounts set forth in this First Amendment shall control. Tenant shall cause its insurers to include City as an additional insured as their interest may appear under this First Amendment on all required auto and general liability insurance policies. Landlord's additional 2 Tenant's Site Name/No: Carmel City/IN0446 Tenant's Fixed Asset No.: 10074700 insured status shall (i) be limited to bodily injury, property damage or personal and advertising injury caused, in whole or in part, by Tenant, its employees, agents or independent contractors; (ii) not extend to claims for punitive or exemplary damages arising out of the acts or omissions of Landlord, its employees, agents or independent contractors or where such coverage is prohibited by law or to claims arising out of the gross negligence of Landlord, its employees, agents or independent contractors; and, (iii) not exceed Tenant's indemnification obligation under this Agreement, if any. In addition, Tenant shall maintain adequate commercial general damage insurance covering Tenant's installation of the Additional Improvements. At Landlord's request, Tenant shall provide a certificate of insurance evidencing such insurance to Landlord. 8. Tenant's Notice and Copy Address. Tenant's notice addresses set forth in the Lease including Section 1.4 shall be replaced as follows: To Tenant: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Re: Cell Site MIN0446, Cell Site Name: Carmel City (IN) FA No: 10074700 575 Morosgo Drive, NE, Atlanta, GA 30324-3300 With the required copy of legal notice sent to Tenant at the address above, a copy to the Legal Department: New Cingular Wireless PCS, LLC Attn: Legal Department, Re: Cell Site MIN0446, Cell Site Name: Carmel City (IN) FA No: 10074700 208 S. Akard Street, Dallas, TX 752024206 A copy sent to the Legal Department is an administrative step which alone does not constitute legal notice. 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. 9. Authority. The persons executing this First Amendment on behalf of Tenant and Landlord hereby represent that they have the authority to bind Tenant or Landlord, as the case may be, to the terms and conditions set forth herein and that all necessary action therefore has been taken. 10. Execution and Delivery; Enforceability. This First Amendment has been duly executed and validly delivered by Tenant and Landlord and constitutes the legal, valid, and binding obligations of the Tenant or Landlord, as the case may be. This First Amendment shall be enforceable against Tenant and Landlord in accordance with its terms. 11. Limited Effect of Amendment. Except to the extent expressly amended by this First Amendment (in which case the terms hereof shall prevail), the various terms and provisions of the Lease shall remain in full force and effect. 12. All other terms, provisions and conditions set out in the Lease, and not specifically amended herein, shall be and remain the same as provided for in said Lease. [Signature page follows] 3 Tenant's Site Name/No: Carmel City/IN0446 Tenant's Fixed Asset No.: 10074700 IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment to Water Tower and Ground Lease Agreement on the day and year first written above. LANDLORD: THE CITY OF CARMEL By and through its Board of Public Works and Safety By: / James Brainard, Presiding Officer Date: S By: Mary An Burke, Member Date: 7/157117 Member Date: j ATTE By. �L Christine S. Pa y, Clerk -Treasurer Date: TENANT: NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation, Its: Manager By: Printed: i Dli?v� Title: "S'Q,�1- Date: ., A 4 Tenant's Site Name/No: Carmel City/IN0446 Tenant's Fixed Asset No.: 10074700 EXHEBIT D ADDITIONAL EViPROVEMENTS See attached pages Tenant's Site Name/No: Carmel City/IN0446 Tenant's Fixed Asset No.: 10074700 EXHIBIT E TEMPORARY ACCESS AREA cSi�Dsi.3cp3F v.•051321 $3717 Tenant's Site Name/No: Carmel City/IN0446 Tenant's Fixed Asset No.: 10074700 EXHIBIT F INSURANCE COVERAGES Workers Compensation & Disability Employers Liability: Bodily Injury by Accident/Disease: Bodily Injury by Accident/Disease: Bodily Injury by Accident/Disease: Commercial General Liability Property Damage, Contractual Liability, Products -Completed Operations: General Aggregate Limit (other than Products/Completed Operations): Products/Completed Operations: Personal & Advertising Injury Policy Limit: Each Occurrence and Aggregate Fire Damage (any one fire): Statutory Limits $500,000.00 each employee $500,000.00 each accident $500,000.00 policy limit Combined single limit of $1,000,000.00 per occurrence for bodily injury, personal injury and property damage with a $2,000,000.00 policy general aggregate $500,000.00 aggregate $1,000,000.00 $1,000,000.00 $250,000.00 Commercial Auto Liability (owned, hired and non -owned) Combined Single Limit: $1,000,000.00 each accident Umbrella/Excess Liability: $5,000,000.00. Tenant may use any combination of primary and excess to meet required total limits. Notwithstanding the forgoing, Tenant may, in its sole discretion and subject to satisfaction of the Insurance Conditions described herein, self -insure any of the required insurance under the same terms as required by this Agreement provided that, in the event Tenant elects to self -insure its obligation under this Agreement to include Landlord as an additional insured, the following conditions apply: (i) Tenant shall have provided Landlord with written notice of Tenant's election to self -insure sufficient to allow Landlord to comply herewith; (ii) Landlord shall promptly and no later than forty-five (45) days after notice thereof provide Tenant with written notice of any claim, demand, lawsuit, or the like for which it seeks coverage pursuant to this section and provide Tenant with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, lawsuit, or the like; (iii) To the extent Landlord will seek Tenant's Site Name/No: Carmel City/IN0446 Tenant's Fixed Asset No.: 10074700 reimbursement under Tenant's self-insurance, Landlord shall not settle any such claim, demand, lawsuit, or the like without the prior written consent of Tenant, which consent shall not be unreasonably withheld; and (iv) Landlord shall reasonably cooperate with Tenant in the defense of the claim, demand, lawsuit, or the like. Tenant's election to self -insure shall in no way modify any of Tenant's indemnification obligations under the Lease or this First Amendment. Tenant may maintain commercially reasonable deductibles on the insurance Tenant is required to maintain hereunder. Notwithstanding anything in the Lease to the contrary, as long as (i) Tenant or Tenant's parent company remains AT&T, Inc.; (ii) Tenant has not assigned the Lease or sublet any portion of the Leased Property; and (iii) Tenant or Tenant's parent company maintains a Tangible Net Worth of no less than $100,000,000.00 (collectively, the "Insurance Conditions"), Tenant may satisfy its insurance obligations hereunder through a self-insurance program. At any time that the Insurance Conditions are not maintained, Tenant must promptly, upon written notice from Landlord, comply with all such requirements. As used herein, "Tangible Net Worth" means the excess of total assets over total liabilities, in each case as determined in accordance with generally accepted accounting principles consistently applied ("GAAP"), excluding, however, from the determination of total assets all assets which would be classified as intangible assets under GAAP including goodwill, licenses, patents, trademarks, trade names, copyrights, and franchises.