Nextel Communications/Lease Termination ` e
(Nextel Site#1N2431 A) •
LEASE TERMINATION AGREEMENT
AND
GENERAL RELEASE
_ n
Oft
This LEASE TERMINATION AGREEMENT AND GENERAL RELEASE (the
"Agreement") is made as of April 29, 2014, 2014, by and between,Nextel West Corp., a
Delaware corporation d/b/a Nextel Communications, ("Nextel") and City of Carmel by and
through its Board of Public Works and Safety ("Owner") with reference to the following facts,
understandings and intentions:
RECITALS
A. Owner owns certain property located at 473 Third Ave. SW, Carmel, IN
("Owner's Property"). Nextel, as lessee or tenant(or successor in interest to the lessee or
tenant), and Owner, as lessor or landlord (or successor in interest to the lessor or landlord), are
parties to that Lease Agreement dated as of December 02, 1998 (the "Lease") whereby Owner
leases to Nextel a portion of Owner's Property, as further described in the Lease (the "Site").
B. Nextel uses the Site for a communications facility that, pursuant to the Lease,may
include among other things, an antenna tower or pole and foundation, utility lines, transmission
lines, an air conditioned equipment room or shelter and pad, cable wiring, conduit runs, radios
and other electronic equipment, transmitting and receiving antennas and microwave dishes,
batteries and other power sources (possibly including a generator and pad), related fixtures and
supporting equipment,and structures therefor(collectively, the "Communications Facility").
C. By mutual agreement, Nextel and Owner desire to terminate the Lease, effective
as of the Termination Date(as defined below).
D. Nextel and Owner are willing to so terminate the Lease, pursuant to the provisions
of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Date of Termination; Final Payment.
a. The Lease is hereby canceled and terminated effective at 11:59 p.m. on
December 31, 2014, or the date Nextel vacates and surrenders the Site
pursuant to Section 2a below, whichever first occurs ("Termination Date").
From and after the Termination Date, neither Owner nor Nextel will have any
further rights or obligations under the Lease, and Nextel will have no further
right or interest with respect to the Site.
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(Nextel Site#IN2431 A)
b. In frill and final payment of any and all sums due or owing by Nextel to
Owner under the Lease or otherwise in connection with Owner's Property or
the Site, Nextel will make a final payment of Zero Dollars ($0.00), in the
same time and manner as rent is currently paid by Nextel, constituting Rent
and other charges (if applicable) for the final month of the Lease (the "Final
Payment").
2. Vacation and Surrender of the Site: Site Acceptance.
a. Owner and Nextel have expressly agreed that, on or before the
Termination Date,Nextel will vacate and surrender the Site to Owner in its current"AS-IS"
condition, except that Nextel will remove from the Site the following(the "Removed
Equipment"):
Remove antennas and mounting hardware
Remove Coax Lines and related hardware
Remove grounding equipment above and below grade (include bars, cable and
ancillary hardware on tower) or as stipulated in agreement.
Restore gravel on grounds, if disturbed.
Remove exterior cabinets and enclosures (RF and battery), including above
ground platforms, stairs and exterior Telco and AC conduits and cable.
Remove coax cable trays, sleepers, wear pads and parapet wall coax support
brackets.
Remove all iDEN radio equipment (base radios, ISCs, rectifiers, AC-DC
power plants, batteries, racks, controller, DC power, and related support
hardware).
Remove generator and fuel storage tanks, including draining and disposal of
fluids, and disconnection of electrical and Telco conduits.
Nextel will have no further obligation (notwithstanding anything to the contrary contained in the
Lease or otherwise) to remove the Communications Facility (all of which will be deemed
abandoned by Nextel and accepted by Owner) or otherwise repair or restore the Site or any other
portion of Owner's Property.
b. Upon Nextel's vacation of the Site, Owner and Nextel will each execute
duplicate originals of the"Site Acceptance and Release" in the form attached hereto as Exhibit A
("Site Acceptance"). Owner's execution of the Site Acceptance will constitute conclusive
evidence and proof that Nextel has vacated and surrendered the Site to Owner in the condition
required by the Lease and this Agreement, and that any portion of the Communications Facility
(and any other equipment or property) remaining on Owner's Property will be deemed
abandoned by Nextel and accepted by Owner, on the terms set forth therein.
3. Release of Obligations. Except for Owner's and Nextel's respective rights to
enforce the provisions of this Agreement and the Site Acceptance, effective as of the
Termination Date, Owner and Nextel, for themselves and their respective parent, subsidiary and
related corporations, partners, affiliates, heirs, successors and assigns, do each hereby release and
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(Nextel Site#lN243IA)
forever discharge each other and their present and former directors, officers,shareholders,
managers, agents, trustees, beneficiaries, attorneys and employees (the "Released Parties") from
all obligations, damages, losses, costs, expenses and liabilities whether known or unknown,
contingent or direct, liquidated or unliquidated, and from any claims, demands,judgments,
actions or suits of any kind (collectively, "Claims") which they may have against one another
arising out of or relating to the Lease, and the use and occupancy of Site, the Communications
Facility and/or Owner's Property, including without limitation, any attorneys' fees incurred in
connection therewith. Each party acknowledges the possibility that the other party may have
unknown Claims against the other arising out of or related to the Lease, and the use and
occupancy of Site, the Communications Facility and/or Owner's Property, and that by signing
this Agreement, each party expressly waives such Claims. The parties further acknowledge that
the consideration for this mutual release takes into account the possibility of such further Claims.
4. Voluntary Agreement. The parties have read this Agreement and the releases
contained herein and, on advice of counsel, have freely and voluntarily entered into this
Agreement with full understanding of its terms.
5. Recitals. The above recitals are an integral and substantive part of this Agreement
and are incorporated herein.
6. Attorneys' Fees. If either party commences an action against the other party
arising out of or in connection with this Agreement, the prevailing party will be entitled to
recover attorneys' fees and expenses from the other.
7. Successors. This Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors and assigns.
8. Counterparts. This Agreement may be executed in any number of duplicate
originals or counterparts,each of which will be deemed to be an original, and all of which taken
together will constitute one and the same agreement. The parties agree that their signatures may
be delivered by fax or email.
9. Governing Law. The validity, interpretation, construction and performance of
this Agreement will be controlled by and construed under the laws of the state in which the Site
is located.
IN WITNESS WHEREOF, the parties have executed this Lease Termination Agreement
and General Release as of the date and year first above written.
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(Nextel Site 41N243 A)
Appfoved and Adopted this 21 day of
/"IG{ cI , 204 .
CITY OF CARMEL, INDIANA "NEXTEL"
By and through its Board of Public Works and
Safety Nextel West Corp., a Delaware corporation
d/b/a Nextel Communications
BY:
By:
J Name:
roes Brainard, Presiding Officer Title:
' Date:
)2/1
Mary Al Burke. m1�er
Date: J 7
Lori S. Watson, Member
Date:
ATTEST::hh
raea Cordray, IQ4 ,C}erk-'j reasurer
Date: ..1 u /JyG
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(Nextel Site i1N2431A)
Exhibit A
SITE ACCEPTANCE and RELEASE
This SITE ACCEPTANCE and RELEASE is made as of (`Effective Date"),
by and between Nextel West Corp., a Delaware corporation d/b/a Nextel Communications("Nextel")
and City of Carmel by and through its Board of Public Works and Safety("Owner")with reference to
the following facts, understandings and intentions:
A. Owner and Nextel are parties to that LEASE TERMINATION AGREEMENT and GENERAL
RELEASE dated April 29,2014(the"Agreement"),that terminated a Lease for a Site on Owner's
Property located at 473 Third Ave. SW, Cannel, IN(Nextel Sited 1N2431 A), all terms of
which are incorporated herein. Capitalized terms used but not defined herein have the meanings set
forth in the Agreement.
B. Nextel used the Site for a communications facility that may have included,among other things,an
antenna tower or pole and foundation, utility lines, transmission lines,an air conditioned equipment room or shelter
and pad, cable wiring,conduit runs, radios and other electronic equipment,transmitting and receiving antennas and
microwave dishes,batteries and other power sources(possibly including a generator and pad),related fixtures and
supporting equipment,and structures therefor(collectively,the"Communications Facility").
C. Nextel removed some or all of the Communications Facility and restored the Site and Owner's
Property to the condition required by the Lease and the Agreement, and Nextel vacated and surrendered the Site to
Owner as of the Effective Date. The parties now desire to execute this Site Acceptance and Release,pursuant to the
Agreement.
NOW.THEREFORE, in consideration of the foregoing, the provisions set forth below, and other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, Owner hereby acknowledges
that,as of the Effective Date. Nextel has vacated, surrendered and restored the Site and Owner's Property to the
condition required by the Lease and the Agreement and that any portion of the Communications Facility(and any
other equipment or property)remaining on Owner's Property shall be deemed abandoned by Nextel(collectively,
the"Abandoned Property"); Owner accepts any such Abandoned Property in its present condition"AS-IS",
"WHERE-IS"and "WITH ALL FAULTS", and without any representations, warranties, promises, covenants or
guaranties whatsoever,express, implied,oral,written, statutory or otherwise (including,without limitation,no
warranties of merchantability, marketability, profitability, fitness for a particular purpose or conformity to models or
materials); and Owner fully and forever releases Nextel and the Released Parties from all Claims and any and all
liability whatsoever in connection with the foregoing and the Lease, and agrees to indemnify, defend and hold
Nextel and the Released Parties harmless from and against all Claims and any and all losses,costs, liabilities,
damages,claims,actions and causes of action(including attorneys' fees and court costs)arising out of or relating in
any way to any such Abandoned Property.
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(Nextel Site#IN243I A)
Executed on .2014
Approved and Adopted this day of
, 20 .
CITY OF CARMEL, INDIANA "NEXTEL"
By and through its Board of Public Works and
Safety Nextel West Corp., a Delaware corporation
d/b/a Nextel Communications
BY:
By:
Name:
James Brainard, Presiding Officer Title:
Date:
Mary Ann Burke, Member
Date:
Lori S. Watson, Member
Date:
A"T"TEST:
Diana Corchay, IMCA, Clerk-Treasurer
Date:
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