HomeMy WebLinkAboutHandouts_Regular_Tab 19_08/13/2009Market: Southeast/So. FL
Cell Site Number: E. Tequesta
Cell Site Name: E. Tequesta
I fixed Asset Number: I01 18803
LEASE AC>E~EEI~HE1~1'H'
THIS LEASE AGREEMENT ("Agreement"), dated as of the latter of the signature dates
below ("Effective date"), is entered into by Village of Tequesta, a Florida municipal
corporation, having a mailing address of 250 Tequesta Drive, Suite #300, Tequesta, FL 33469
(hereinafter referred to as "Landlord") and New Cingular Wireless PCS, LLC, a Delaware
limited liability company, having a mailing address of 12555 Cingular Way, Alpharetta, GA
30004 (hereinafter referred to as "'1<'enant").
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Landlord owns or controls that certain plot, parcel or tract of land, together with all rights
and privileges arising in connection therewith, located at 136 Bridge Road, Tequesta, Florida, in
the County of Palm Beach, State of Florida (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 ®F PRE1bIlSES. Landlord leases to Tenant a certain portion of the Property
containing approximately six hundred forty-four (6441 square feet (23' x 28'1 including the air
space above such room/cabinet/ground space 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. PEIZI~ITTEI- USE.
~a 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 may include a suitable support structure, associated
antennas, 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 9ll 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 l includes drawings of the initial installation of the
Communication Facility, Landlord's execution of this Agreement will signify Landlord's
approval of Exhibit 1. For a period of ninety (90) days following the start of construction,
Landlord grants Tenant, its subtenants, licensees and sublicensees, the right to use such portions
of Landlord's contiguous, adjoining or surrounding property as described on Exhibit 1 hereto
(the ``Surrounding Property") as may reasonably be required during construction and
installation of the Communications Facility. Tenant has the right to install and operate
transmission cables from the equipment shelter or cabinet to the antennas, electric lines from the
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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, at Tenant's expense. 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 or relocate the Communication Facility within the Premises at any time
during the 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.
b~ 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 agrees to lease to Tenant the Additional Premises, 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.
(cl Nothing contained in this Lease Agreement shall Hermit Tenant to allow anv third
Lamy to co-locate ground facilities on the Premises or on anv Additional Premises.
(d) Both the Village and the Tenant hereby acknowledge and agree that additional
third parties may be allowed to co-locate their eauipment on the Communication Facility support
structure installed by Tenant under the following circumstances:
i. Whenever a third party desires to lease space from Tenant on the
Communication Facility support structure. Tenant shall identify the third nartv to
Landlord. The third nartv and Landlord will in good faith attempt to negotiate a ground
lease agreement for location and placement of the third party's ground eauipment and
facilities on land outside of the Premises or Additional Premises. if any.
ii. The terms and conditions of any such reauired lease agreement shall be at
the sole discretion of Landlord and the third party; Tenant shall have no right to
participate in the negotiation of such ground lease agreement.
iii. Landlord shall be entitled to all revenue derived from the third party's
location and placement of ground eauipment and facilities derived from the reauired
ground lease agreement.
iv. An approved and fully executed ground lease agreement between
Landlord and the third party for location and placement of the third party's ground
eauipment and facilities shall be a condition precedent to Tenant allowing the third party
to co-locate their eauipment on Tenant's Communication Facility support structure.
vi. Tenant shall be entitled to all revenue derived from the third party's co-
location of facilities on the Communication Facility support structure.
3. TERM.
(a) The initial lease term will be ten 10 years ("Initial Term"), commencing on the
Effective Date. The Initial Term will terminate on the tenth (lOthl 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 defined as the "Extension Term"), upon the same terms
and conditions unless the Tenant notifies the Landlord in writing of Tenant's 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 (4t'') extended term, either
Landlord or Tenant has not .given the other written notice of its desire that the term of this
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Agreement end at the expiration of the fourth (4`") extended term, then upon the expiration of the
fourth (4t") 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 (4t") 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 "I-1<oldover 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. REl~1T.
(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 Two Thousand Five Hundred and No/100 Dollars 02.500.001
("Rent"). Rent for twenty five percent (25%1 of the Initial Term shall be paid within 30 days of
the Rent Commencement Date at the address set forth above and subsequently thereafter Rent
shall be paid monthly on or before the fifth (St") day of each calendar month in advance. If this.
Agreement is terminated for any reason whatsoever within the first twenty five percent (25%) of
the Initial Term, prepaid Rent for the unused portion of the Initial Term shall be forfeited by
Tenant. In partial months occurring after the Rent Commencement Date, Rent will be prorated.
(b) In year one (1) of the Second Term, and each year thereafter, including
throughout any Extension Terms exercised, the monthly Rent will increase by one and one-half
percent (1 '/2 %) over the Rent paid during the previous year.
(c) All charges payable by Tenant under this Agreement such as utilities and taxes
shall be billed to Tenant by Landlord within one (1) year from the end of the calendar year in
which the charges were incurred; any charges beyond such period shall not be billed by
Landlord, and shall not be payable by Tenant. The foregoing shall not apply to monthly Rent
which is due and payable without a requirement that it be billed by Landlord. The provisions of
the foregoing sentence shall survive the termination or expiration of this Agreement.
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 and/or 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.
(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
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Premises will be compatible with Tenant's engineering specifications, system, design, operations
or Governmental Approvals.
6. TERMIINATI®N. This Agreement may be 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 of this Agreement after the applicable cure periods; however. as
set forth in paragraph 4(al. any unused portion of prepaid rent shall be forfeited by Tenant should
such termination occur within the first twenty five percent (25%1 of the Initial Term.
(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}
however. as set forth in paragraph 4(al. any unused portion of prepaid rent shall be forfeited by
Tenant should such termination occur within the first twenty five percent (25%1 of the Initial
Term.
(c) By Tenant upon written notice to Landlord for any reason, at any time prior to
commencement of construction by Tenant; or
(d) By Tenant upon one hundred eighty (1801 days prior written notice to Landlord
for any reason or no 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), 6(a), 6(b), 6(c), 8, 11(d), 18, 19 or 23(j) of this Agreement. Anv such
termination fee shall be in addition to forfeiture of the unused portion of prepaid rent as set forth
in paragraph 4(al. should such termination occur w_ ithin__ the first twenty five percent (25%1 of the
Initial Term.
7. INSURANCE.
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 Two Million Five Hundred
Thousand Dollars $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.
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 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) Subiect to the terms and provisions of paraeraph 2(dl. 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) Subiect to the terms and provisions of
paragraph 2(dl. Landlord will not use, nor will Landlord permit its employees, tenants, licensees,
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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. In the event any such interference does not cease within the
aforementioned cure period then the parties acknowledge that Tenant will suffer irreparable
injury, and therefore, 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) 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) 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.
(d) Nothing contained in this Lease Agreement, including but not limited to the
indemnification of this naragranh 9 as well as the indemnification of uaragranh l 1. shall be
construed as a waiver of sovereign immunity or the statutory limits of liability set forth in Sec.
768.28, Florida Statutes.
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.
(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; however, this warranty is exclusive of
anv subsequent agreements that may be created in accordance with the terms of naragranh 2(dl;
(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
will use best efforts to provide promptly to Tenant a mutually agreeable Subordination, Non-
Disturbance and Attornment Agreement.
1 L ENVIRONMENTAL.
(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
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investigation, inquiry or remediation. Landlord and Tenant agree that each will be responsible
for compliance with any and all environmental and 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 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 will survive the expiration or termination of this Agreement.
(d) In the event Tenant becomes aware of any hazardous materials on the Property, or
any environmental or industrial hygiene condition or matter relating to the Property that, in
Tenant'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 to undue risks of government action, intervention or third party liability, Tenant
will have the right, in addition to any other rights it may have at law or in equity, 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, subiect to anv subsequent agreements that may be created in accordance with
the terms of nara~ranh 2(d). 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.
Landlord acknowledges that in the event Tenant cannot access the Premises, Tenant shall incur
significant damage. If Landlord fails to provide the access granted by this Paragraph 12, such
failure shall be a default under this Lease. In connection with such default, in addition to any
other rights or remedies available to Tenant under this Lease or at law or equity, Landlord shall
pay Tenant, as liquidated damages and not as a penalty, $500.00 per day in consideration of
Tenant's damages, including, but not limited to, its lost profits, until Landlord cures such default.
Landlord and Tenant agree that Tenant's damages in the event of a denial of access are difficult,
if not impossible, to ascertain, and the liquidated damages set forth herein are a reasonable
approximation of such damages. Upon Tenant's request, 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.
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13. REM®VAL/REST®RATI®N. All portions of the Communication Facility brought
onto the Property by Tenant will be and remains 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
may be 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 structural steel or any foundations or
underground utilities.
14. 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.
(h) 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. When submetering is
required under this Agreement, Landlord will read the meter and provide Tenant with an invoice
and usage data on a monthly basis. Landlord agrees that it will not include a markup on the
utility charges. Landlord further agrees to provide the usage data and invoice on forms provided
by Tenant and to send such forms to such address and/or agent designated by Tenant. Tenant
will remit payment within thirty days of receipt of the usage data and required forms. Failure by
Landlord to perform this function will limit utility fee recovery by Landlord to a 12-month
period. If Tenant submeters electricity from Landlord, Landlord agrees to give Tenant at least 24
hours advanced notice of any planned interruptions of said electricity. Landlord acknowledges
that Tenant provides a communication service which requires electrical power to operate and
must operate twenty-four (24) hour per day, seven (7) day per week . If the interruption is for an
extended period of time, in Tenant's reasonable determination, the Landlord agrees to allow
Tenant the right to bring in a temporary source of power for the duration of the interruption.
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.
(c) Tenant shall install a flagpole antenna structure and will be solely responsible for
the following: (i) providing and installing the flag of the United States of America; (ii) paying for
electricity to light the flag; (iii) maintaining and replacing the lights and flag as needed; and (iv)
complying with all flag protocols. Landlord shall have the right to request that Tenant change
the United State of America flag to a Village flag at sometime in the future, provided that,
Landlord shall be responsible for providing, maintaining and replacing the Village flag, as
needed.
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
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after receipt of written notice from Landlord of such failure to pay; (iil co-location of third bartv
eauigment on the Communication Facility support structure prior to an annmved anc3 filly
executed lease agreement between Landlord and the third nartv for location and placement of the
third nartv's ground eauinment and facilities: or (iii) 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: (i) failure to provide access to the Premises or to cure an interference problem within
twenty-four (24) hours after receipt of written notice of such default; or (ii) 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 this Agreement or
sublease the Premises and its rights herein, in whole or in part, provided that the assignee or
sublessee assumes, recognizes and also agrees in writing to become responsible to the Landlord
for the performance of all terms and conditions of this Agreement. Tenant will provide Landlord
with a copy of the fully executed Assignment and Assumption Agreement within thirty (30) days
of the completion. Upon notification to Landlord by Tenant of any such action, Tenant will be
relieved of all future performance, liabilities and obligations under this Agreement to the extent
of such assignment.
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:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #: E. Tequesta; Cell Site Name: E. Tequesta(FL)
Fixed Asset No: 10118803
12555 Cingular Way
Alpharetta, GA 30004
With a copy to: New Cingular Wireless PCS, LLC
Attn: AT&T Legal Department
Re: Cell Site #: E. Tequesta; Cell Site Name: E. Tequesta (FL)
Fixed Asset No.: 10118803
1025 Lenox Park Blvd. NE
5~' Floor
8
Atlanta, GA 30319-5309
If to Landlord: Village of Tequesta
250 Tequesta Drive, Suite #300
Tequesta, FL 33469
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.
(b) In the event of a change in ownership, transfer or sale of the Property, within ten (10)
days of such transfer, Landlord will send the below documents (in section 17(b)(i) to
Tenant. In the event Tenant does not receive such appropriate documents, Tenant shall
not be responsible for any failure to pay the current landlord
(i) a. Old deed to Property
b. New deed to Property
c. Bill of Sale or Transfer
d. Copy of current Tax Bill
e. New W-9
f. New Payment Direction Form
g. Full contact information for new Landlord including all phone numbers
18. CONDEMNAT101/'. 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.
19. 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 pro-rata
basis. If notice of termination is given, or if Landlord or Tenant undertake to rebuild the
Communications Facility, Landlord agrees 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 activate a replacement transmission facility at another location or the
reconstruction of the Communication Facility is completed.
20. 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. 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.
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21. TAXES. Landlord shall be responsible for payment of all ad valorem taxes levied upon
the ]ands, improvements and other property of Landlord. Tenant shall be responsible for all
taxes levied upon Tenant's leasehold improvements (including Tenant's equipment building and
tower) on the Premises. Landlord shall provide Tenant with copies of all assessment notices on
or including the Premises immediately upon receipt, but in no event later than thirty (30) days
after receipt by Landlord. If Landlord fails to provide such notice within such time frame,
Landlord shall be responsible for all increases in taxes for the year covered by the assessment.
Tenant shall have the right to contest, in good faith, the validity or the amount of any tax or
assessment levied against the Premises 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 Premises. 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.
22. SALE OF PROPERTY/RIGHT OF FIRST REFUSAL.
(a) 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 subjcct to this Agreement and Tenant's rights hereunder.
Subiect to the provisions of nara~ranh 2(d), 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, and subiect to the provisions of
para~raoh 2(d). 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 22 shall in no way limit or impair the obligations of Landlord under
Paragraph 8 above.
(b) If at any time after the Effective Date, Landlord receives a bona fide written offer
from a third party seeking an assignment of the rental stream associated with this Agreement
("Purchase Offer"), Landlord shall immediately furnish Tenant with a copy of the Purchase
Offer, together with a representation that the Purchaser Offer is valid, genuine and true in all
respects. Tenant shall have the right within thirty (30) days after it receives such copy and
representation to match the Purchase Offer and agree in writing to match the terms of the
Purchase Offer. Such writing shall be in the form of a contract substantially similar to the
Purchase Offer. If Tenant chooses not to exercise this right of first refusal or fails to provide
written notice to Landlord within the thirty (30) day period, Landlord may assign the rental
stream pursuant to the Purchase Offer, subject to the terms of this Agreement (including without
limitation the terms of this Paragraph 22, to the person or entity that made the Purchase Offer
provided that (i) the assignment is on the same terms contained in the Purchase Offer and (ii) the
assignment occurs within ninety (90) days of Tenant's receipt of a copy of the Purchase Offer. If
such third party modifies the Purchase Offer or the assignment does not occur within such ninety
10
(90) day period, Landlord shall re-offer to Tenant, pursuant to the procedure set forth in this
Subparagraph 22(b), the assignment on the terms set forth in the Purchase Offer, as amended.
The right of first refusal hereunder shall (i) survive any transfer of all or any part of the Property
or assignment of all or any part of the Agreement; (ii) bind and inure to the benefit of, Landlord
and Tenant and their respective heirs, successors and assigns; (iii) run with the land; and (iv)
terminate upon the expiration or earlier termination of this Agreement.
23. 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 maybe 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 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 terms "termination" or "expiration" are interchangeable; and
(vi) reference to a default will take into consideration any applicable notice, grace and cure
periods; and (vii) to the extent there is any issue with respect to any alleged, perceived or actual
ambiguity in this Agreement, the ambiguity shall not be resolved on the basis of who drafted the
Agreement.
(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 encumbrance 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) W-9. Landlord agrees to provide Tenant with a completed IRS Form W-9, or its
equivalent, upon execution of this Agreement and at such other times as may be reasonably
requested by Tenant.
(i) 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.
(j) 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 (I 0) business days prior written notice to the other party hereto.
(k) Counterparts. This Agreement maybe executed in two (2) or more counterparts,
all of which shall be considered on and the same agreement and shall become effective when one
or more counterparts have been signed by each of the parties. It being understood that all parties
need not sign the same counterpart.
(1) Radon Gas. In accordance with Florida Law, the following statement is hereby
made: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities may present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from your county
health department.
IN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the last
date written below.
WITNESSES:
corporation
Print Name:
Print Name:
ATTEST:
BY:
Print Name:
CITY CLERK
"LANDLORD"
Village of Tequesta, a Florida municipal
By:
Print Name:
Its: Mayor
Date:
12
II~~A7~T.T~11
Print Name:
New Cingular Wireless PCS, LLC,
By: AT&T Mobility Corporation
lts: Manager
Print Name:
By:
Print Name:
Its:
Date:
13
EXHIBIT
I~ESCIZIPTI®1\t ®F PItE1VIISES
Page ] of 2
to the Agreement dated 2009, by and between Village of Tequesta, a Florida
municipal corporation (hereinafter referred to as "Landlord") and New Cingular Wireless PCS, LLC, a
Delaware limited liability company (hereinafter referred to as "Tenant").
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.
14
EXHIBIT l
DESCI~><P'&'ION ®F' I'REIi'IISES
Page 2 of 2
to the Agreement dated 2009, by and between Village of Tequesta, a Florida
municipal corporation (hereinafter referred to as "Landlord") and New Cingular Wireless PCS, LLC, a
Delaware limited liability company (hereinafter referred to as "Tenant").
(Site Sketch and Survey Attached)
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