RECIPROCAL LEASE AGREEMENT
THIS RECIPROCAL LEASE AGREEMENT ("Agreement") is made and entered into as of
the Effective Date by and between the COUNTY OF BEAUFORT, a South Carolina political
subdivision ("Lessor"), and ATC SOUTH LLC, a Delaware limited liability company ("Lessee").
WHEREAS, Lessor is the owner of certain real property located in Beaufort County, State of
South Carolina;
WHEREAS, Lessor desires to lease to Lessee and Lessee desires to lease from Lessor a portion
of such real property, containing approximately 8.76 acres, located at 59 Cleveland Road, Burton, SC
29906, together with access and utilities easements thereto, as hereinafter described (such portion of real
property and easements being referred to as the "Property"), more specifically described in and shown on
Exhibits A and B attached hereto and made a part hereof, for the purposes of Lessee constructing a
communications facility ("Communications Facility" as hereinafter defined) on the Property and
marketing to third-party users ("Licensees") the right to install, operate and maintain communications
equipment on portions of the Property;
WHEREAS, Lessor desires to install, operate and maintain on the Communications Facility
certain conununications equipment for Lessor's public safety services and the Tower Site will be part of
the public safety service facility in Shell Point to provide emergency dispatch communications for police,
fire and EMS in Beaufort County;
WHEREAS, both parties desire to set forth the terms and conditions of their agreement.
NOW, mEREFORE, for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1.
Lease.
1.01
Lessor hereby grants to Lessee the right to exclusively lease, occupy and use the Property
for the purpose of constructing, operating and maintaining one or more telecommunications towers,
related facilities and equipment shelters ("Tower Site"). The Tower Site, Easements and any appurtenant
easements may also be referred to herein as the "Communications Facility").
1.02
Lessee and its Licensees shall have access, ingress and egress over and across the access
roads leading to the Tower Site as designated by Lessor ("Access Easement"), seven (7) days per week,
twenty-four (24) hours per day, for vehicles, including trucks and construction machinery. Lessee shall
have the right to install, construct, maintain, operate, replace, or reconstruct upon. across, under, or over
the Access Easement any utilities pipes, cables, lines or other conduits deemed necessary by Lessee
("Utilities Easement").
1.03
Lessee shall obtain and maintain, at Lessee's sole cost, all necessary governmental
permits and approvals ("Governmental Approvals") to construct and operate the Communications
Facility. Lessor shall grant or obtain all zoning approvals and variances required for construction of the
Communications Facility to the extent of its legal authority and control and shall otherwise cooperate
with Lessee, at Lessee's sole expense, in obtaining all other Governmental Approvals.
2.
Term and Rent.
Site No: SC2-14FO!3.!
Site Name: CLEVELAND RD. E-9!1
ATC Re..:iprocal Lease Agr (R~v_ .1_ [2-0\)
1
2.01
The term of this Agreement shall be for an initial period of five (5) years ("Initial Term").
This Agreement shall be extended automatically under the same terms and conditions for nine (9)
successive periods of five (5) years each ("Extended Term(s)"), unless Lessee provides Lessor with six
(6) months prior written notice of Lessee's intention not to extend the Term at the end of the then-{;urrent
term. The Initial Term and the Extended Term(s) may collectively be referred to as the "Term").
Neither party hereto shall be required to pay any cash rent to the other party except as
2.02
specified in Subsection 4.03 herein.
2.03
In consideration for this Agreement, commencing the eleventh (11th) anniversary of this
Agreement and payable on the first day of the second month following the month in which each
anniversary thereafter occurs, Lessee shall pay to Lessor an amount equal to ten percent (10%) of the total
of (i) License Fees received by Lessee pursuant to license agreements entered into by Lessee with
Licensees for space on the Communications Facility, and (ii) Rents received by Lessee pursuant to
sublease agreements entered into with sublessees for space on the Communications Facility, the terms
"License Fee" and "Rent" being defined in the respective license or sublease agreements.
3.
Construction and Use by Lessee.
3.01
Lessee agrees to use reasonable efforts to complete construction within ninety (90) days
following receipt of the building pennit. In the event that Lessee is not able to obtain the necessary
Governmental Approvals, including building pennit, then Lessee shall have no obligation to construct the
Communications Facility, this Agreement shall become null and void, and neither party shall have any
further obligation to the other.
3.02
The Communications Facility shall be constructed, installed and maintained, and utilized
by Lessee and Lessee's Licensees, in such a manner so as not to interfere with the business of the Lessor,
and shall be kept in in good order and repair.
3.03
Title to all improvements constructed or installed by Lessee on the property shall remain
with Lessee, whether or not such improvements are attached or affixed to the Property.
4.
Lessor's Equipment.
4.01
Lessee hereby grants to Lessor the right to install on the Tower Site the antennas andlor
receivers described in Exhibit C attached hereto ("Lessor's Equipment"), at a height approved by Lessee,
for the purpose of internal and emergency services communications by Lessor only and for no other
purpose or by any other party, finn or corporation, and the Tower Site will be part of the public safety
service facility in Shell Point to provide emergency dispatch communications for police, fire and EMS for
the County of Beaufort, South Carolina.. Lessor shall be pennitted to construct on the Tower Site, at
Lessor's sole expense, an equipment shelter to house related equipment as described in Exhibit C.
4.02
Lessor agrees that all of Lessor's Equipment and the equipment shelter shall be installed
in exact accordance with that specified in Exhibit C, provided that Lessor may replace its existing
equipment at any time with identical or substantially identical equipment in dimension and wind load, as
well as specification.
4.03
Lessor agrees that, in the event it desires to install equipment other than Lessor's
Equipment listed in Exhibit C that increases the weight andlor wind load requirements, Lessor will
execute a reciprocal site license agreement for such additional equipment.
Site No: SC2-14FOI3.1
Site Name: CLEVELAND RD. E-91 I
ATe Reciprocal Lease Agr{Rev_ 4-12-01)
2
Equipment experiences interference caused by Lessee's Licensees, Lessor shall notify Lessee of such
interference and Lessee shall cause such interference to cease within twenty-four (24) hours of such
notification and to be eliminated within seventy-two (72) hours of such notification, except for brief
periods of testing to accomplish such elimination.
8.02
Interference to Licensee's Eouipment. In the event that any addition or modification to
Lessor's Equipment or operations causes interference to the equipment of any Licensee existing on the
Communication Facility at the time of such addition or modification of Lessor's Equipment, Lessee or the
affected Licensee shall notify Lessor of such interference and Lessor shall cause such interference to
cease within twenty-four (24) hours of such notification and to be eliminated within seventy-two (72)
hours of such notification, except for brief periods of testing to accomplish such elimination.
9.
Indemnification and Liability Insurance.
9.01
Each Party shall, to the fullest extent permitted by law and within statutory limits of
liability, indemnify, defend and hold harmless other Party, its respective Affiliates, and their respective
directors, employees, officers, shareholders, successors and assigns against all claims, losses, costs,
expenses, damages and liabilities (except as other provided in Section 17 of this Agreement) arising from
(i) the negligence, willful misconduct or strict liability of such Party or its agents, employees,
representatives, contractors; or (ii) any material breach by such party of any provision of this Agreement.
In addition to the forgoing, neither Party shall be responsible or liable to the other for any damage arising
from any claim to the extent attributable to any acts or omissions of other licensees at the Tower Site.
9.02
Without limiting the foregoing in any way, Lessee agrees to maintain comprehensive
commercial general liability and casualty insurance in an amount not less than Five Million and NO/]()()
Dollars ($5,000,000.00).
Lessor agrees that it shall require any subcontractor, agent, employee,
successor or entity performing any type of work whatsoever on the Tower Site to maintain, in full force
and effect comprehensive general liability and casualty insurance in an amount not less than Five Million
and No/IOO Dollars ($5,000,000.00), which insurance policy shall name Lessee as an additional insured.
Notwithstanding anything to the contrary, either party may provide all or some of the insurance coverage
limits required under this Section through and umbrella policy. Such insurance policies shall contain a
provision that such policy shall not be canceled or amended without thirty (30) days notice to the other
Party. Within thirty (30) days following execution of this Agreement, Lessee shall deliver to Lessor a
certificate evidencing such insurance coverage, and Lessor shall require any subcontractor, agent,
employee, successor or other entity performing any type of work on the Tower Site to provide a
certificate evidencing such insurance to Lessee prior to entry upon the Tower Site.
10.
Hazardous Substances.
10.01 Lessor represents and warrants that, with respect to the Property and easements: (a)
Lessor is in compliance with all Environmental Laws, as defined below, and has obtained, and is in
compliance with, all permits, licenses, and other authorizations, if any, which are required under
Environmental Laws, (b) Lessor is not aware of, and has not received notice of, any facts or
circumstances that might give rise to, any civil, criminal or administrative action, liability, suit, demand,
claim, hearing, notice or demand letter, notice of violation, environmental lien, investigation, or
proceeding relating in any way to Environmental Laws, or any disposal or release or presence of
Hazardous Substances, as defined below, on or at the Property or easements or any property owned by
Lessor that is adjoining or adjacent to the Property or the easements, or any past, present or future events,
conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or
prevent compliance or continued compliance on the part of Lessor with any Environmental Laws, and (c)
the Property, including the easements, and all property owned by Lessor that is within one mile of the
Site No: SC2-\4F013.\
Site Name: CLEVELAND RD. E-9\\
ATe Recipro.:al ~se .... sr{Rev. ~-12-0t)
5
Property or the easements, including the soil and groundwater thereunder, are free from Hazardous
Substances.
10.02 Lessor shall defend, indemnify and hold Lessee harmless from and against any claim,
damage, loss, expense, response costs or liability, including consultant fees and reasonable attorneys'
fees, related to or arising from the breach of any of Lessor's representations and warranties, the presence
or suspected presence of Hazardous Substances on, under or around the Property or violations of
Environmental Laws or the generation, storage, disposal of, or release of Hazardous Substances on, under
or around the Property except that Lessee shall defend, indemnify and hold Lessor harmless from and
against any damage, loss, expense, response costs or liability including consultant fees and reasonable
attorneys' fees resulting from violations of Environmental Laws by Lessee or resulting from the Lessee's
release of Hazardous Substances on the Property.
10.03 "Environmental Laws" shall mean all federal, state, local and foreign laws relating to
pollution or protection of the environment, including laws relating to emissions, discharges, releases or
threatened releases of any Hazardous Substance into the environment or the generation, manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances
and any and all regulations, codes, standards, plans, orders, decrees, judgments, injunctions, notices or
demand letters issued, entered, adopted or approved thereunder. "Hazardous Substances" shall mean any
pollutant, contaminate, hazardous, toxic or dangerous waste, substance or material, or any other substance
or material regulated or controlled pursuant to any Environmental Law.
11.
Taxes. Each party shall be solely responsible for all personal property taxes, sales or
other taxes, fees, or utility costs and expenses to the extent assessed upon or used by each party or its
equipment, respectively. Lessor shall forward to Lessee any tax bills received by Lessor for real property
taxes assessed on the Property which are directly attributable to Lessee's use of and activities on the
Property. If such tax bills are in the name of Lessor, then Lessee shall reimburse Lessor the amount of
such taxes due on the Property. Lessee shall be responsible for such taxes from and after the Effective
Date of this Agreement only.
12.
Damage. Destruction and Condemnation.
12.01 Lessor acknowledges and agrees that it is extremely important that Lessee maintain
continuous operation of its communications facility on the Property. Therefore, in the event of any
damage to or destruction of the Property, or any condemnation or other taking thereof, or any
governmental order requiring removal of the Lessee's improvements, which renders Lessee's
improvements or Licensee's equipment inoperable or uuusable, Lessee and Licensees shall have the right,
at their option, to construct or install temporary facilities, including temporary or replacement antennas, if
necessary, on the Property or on Lessor's contiguous property, in such location to be approved by Lessor,
which approval will not be unreasonably conditioned, delayed or withheld, and in a manner which will
not interfere with any repair or reconstruction efforts, in order to continue operation of the
Communications Facility. Lessor shall allow Lessee and Licensees to install such additional equipment
and fixtures, including without limiting the generality of the foregoing, antennas, cables and wires, and
shall permit Lessee and Licensees access, construction, repair and maintenance rights as may be
necessary to allow Lessee to operate and maintain such temporary facilities until the Property has been
sufficiently repaired to permit Lessee to use the improvements on the Property, or until a substitute
permauent location acceptable to Lessor and Lessee has been agreed upon, and construction of such
substitute permanent facility has been completed.
12.02 If the Property is repaired, Lessee shall have the right to construct and install replacement
improvements in and on the repaired Property. It is the intention of the parties that Lessee shall be able to
Site No: SC2-14FOI3.1
Site Name: CLEVELAND RD. E-911
ATe Reciprocallcoase Agr (Rev. 4-12-01)
6
LESSEE:
Signed, sealed and deli vered
before the following witnesses:
ATC SOUTH LLC,
a Delaware limited liability company
By: American Towers, me., its sole Member
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STATE OF GEORGIA
COUNTY OF COBB
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On this
day of
200 d;personally appeared before me, a Notary Public
in and for the above state and county, Jame . Bourne, personal
own to me and who, upon oath,
acknowledges himself to be the Regional Vice President of
rican Towers, lJIc., a Delaware
corporation, the sole Member of ATC SOUTH LLC, and that he exe u the foregoiftk instrument for
the purpose therein contained in his corporate capacity .
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Site No: SC2-14F0I3.1
Site Name: CLEVELAND RD. E-9 I I
ATe Reciprocal Le:ll;e Agr (Rev. -I-I2.()1)
11
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EXHIBIT A
Legal Description of Lessee's Property
ALL that piece, parcel or lot of land, situate, lying and being in Shell Point Park Extension Subdivision
on Port Royal Island, Beaufort Township, Beaufort County, State of South Carolina, and being designated
as containing 8,76 acres on that plat prepared by Beaufort County Public works for Beaufort County
Council dated May 19, 1989, and recorded in Plat Book 37 at Page 157,
This being the same property conveyed to the Lessor herein by deed of Shell Point Extension, Inc, dated
January 11, 1990, and recorded January 19, 1990, in-Deed Book 544 and Page 551
Tax Map Number: Rl00-31-OOO-139A
Site No: SC2-14F013.1
Site Name: CLEVELAND RD. E-9l1
ATC Reciproc.::1i Lease AS"'" (Rev . .t-I2-Ot)
12
EXHIBITC
Procedures for Installation, Maintenance and Removal of Lessor's Equipment
In the event that Lessee or Lessee's representative does not perform any installation, modification,
addition, repair, replacement or removal of Lessor's Equipment, the following procedures shall be
followed:
1.
Lessor shall submit to Lessee detailed plans and specifications accurately describing all
Equipment to be installed, modified, replaced or removed, and all work to be performed ("Work"),
including, without limitation, weight and wind load requirements, power supply requirements and
evidence that Lessor has obtained all approvals, permits and consents required by, and has otherwise
complied with, all legal requirements applicable to such Work and the operation of such EquipmenL
2.
Lessor shall not commence any Work until it has received Lessee's written approval,
which approval shall not be unreasonably withheld or delayed.
3.
Lessor shall cause all Work to be performed in accordance with the plans and
specifications approved by Lessee and in compliance with all legal requirements including, without
limitation, legal requirements governing the transmission or operation of radio conununications systems
and related equipment, environmental laws and regulations, OSHA, the Federal Aviation Administration,
and the Federal Communications Commission.
4.
All Work shall be performed at Lessor's sole cost and expense, and Lessor shall pay all
invoices of labor and materialmen in a timely manner to prevent the imposition of any liens on Lessee's
property. In engaging ani person to perform any portion of the Work, Lessor shall require a written
waiver from any contractor, subcontractor, laborer or materialman of all rights under state material and
mechanic lien laws or other laws to impose a lien on any of Lessee's property.
5.
Lessor shall ensure that the Work does not interfere with conununications systems and
equipment of other pre-existing licensees or tower space users.
6.
All Work shall be performed by qualified contractors (including but not limited to
steeplejacks or other· tower climbers), subject to the approval of Lessee. Notwithstanding the foregoing,
Licensor reserves the right, in its sale discretion, to refuse to permit any person or company to climb any
tower structure owned or leased by Lessee. Lessor shall cause any contractor retained by Lessor to keep
in full force and effect during the term of any Work performed on Lessor's behalf pursuant to this
Agreement, a comprehensive general liability insurance policy, including blanket contractual and
completed operations coverage, with limits ofliability of at least $1,000,000 (except tower climbers must
have $5,000,000) with respect to bodily injury, including death, arising from anyone occurrence, and
$1,000,000 (except tower climbers must have $5,000,000) with respect to damage to property arising
from anyone occurrence and an umbrella of no less than $5,000,000 (except tower climbers must have
$10,000,000). Said insurance policy shall be endorsed to include Lessor and Lessee as additional
insureds and joint loss payees and shall provide that Lessor and Lessee will receive at least thirty (30)
days prior written notice of any cancellation or material change in such insurance policy. Lessor shall
furnish to Lessee a certificate of insurance from the contractor(s) and/or subcontractor(s) confmning that
the insurance coverage as specified herein is in full force and effect prior to any Work being commenced.
Such policy shall contain a waiver of subrogation against Lessee.
7.
In no event shall Lessor install or cause to be installed any additional utilities without the
prior consent of Lessee, which consent shall not be unreasonably withheld. Further, upon request by
Site No: SC2·14F0I3.1
Site Name: CLEVELAND RD. E·911
ATC Reciprocal Lease Agr (Rev. 4-12-{)l)
14
Lessee, Lessor shall (at Lessor's expense) secure, to Lessee's reasonable satisfaction, any propane tanks or
generators owned by Licensee at any Communication Facility to prevent any damage that might
otherwise occur during any force majeure event.
8.
Lessor agrees to comply with the reasonable directions and requirements which Lessee,
in its discretion, may from time to time establish in connection with the Communications Facilities and
the operations of Lessor thereunder, provided that such directions and requirements do not unreasonable
interfere with Lessor's ordinary course of business or operations.
9.
Lessor acknowledges and agrees that, upon reasonable prior notice (except for emergency
situations), Lessor shall reduce operating power or cease operation of the Equipment when it is necessary
to prevent the overexposure of workers on any Communication Tower to RF radiation.
10.
Lessee reserves the right to perform a pre-installation andlor post-installation audit and
review with Lessor and Lessor shall fully cooperate with any such reasonable request by Lessee and shall
respond to and address any reasonable concern of Lessee as a result of such audit.
11.
If Lessor produces or obtains "as-builts," site plans, site surveys andlor structural
calculations, then Lessor shall provide copies of such documents to Lessee.
12.
Any additions or modifications to, or replacement of, Lessor's Equipment shall be subject
to these procedures.
Site No: SC2-14F0l3.1
Site Name: CLEVELAND RD. E-911
ATC Rn:iprocal Lease Agr (Rev. 4-12-(1)
15