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HomeMy WebLinkAboutAgreement_General_09/18/2009Market: Southeast/So. FL Cell Site Number: E. Tequesta Cell Site Name: E. Tequesta Fixed Asset Number: 10118803 LEASE AGREEMENT 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 "Tenant"). BACKGROUND 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 OF PREMISES. Landlord leases to Tenant a certain portion of the Property containing approximately six hundred forty-four (644) square feet (23' x 28') 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. PERMITTED 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 911 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 1 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 1 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 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. (c) Nothing contained in this Lease Agreement shall permit Tenant to allow any third party to co-locate ground facilities on the Premises or on any Additional Premises. (d) Both the Village and the Tenant hereby acknowledge and agree that additional third parties may be allowed to co-locate their equipment 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 party to Landlord. The third party and Landlord will in good faith attempt to negotiate a ground lease agreement for location and placement of the third party's ground equipment and facilities on land outside of the Premises or Additional Premises, if any. ii. The terms and conditions of any such required 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 equipment and facilities derived from the required 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 equipment and facilities shall be a condition precedent to Tenant allowing the third party to co-locate their equipment on Tenant's Communication Facility support structure. v. 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 (10th) 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. 2 (c) If, at least sixty (60) days prior to the end of the fourth (4`") extended term, either Landlord or Tenant has not given the other written notice of its desire that the term of this Agreement end at the expiration of the fourth (4th) extended term, then upon the expiration of the fourth (4th) 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 (4th) 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 "Holdover 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. RENT. (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 ($2,500.00) ("Rent"). Rent for twenty five percent (25%) 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 (5th) 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 %i %) 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 Premises will be compatible with Tenant's engineering specifications, system, design, operations or Governmental Approvals. 6. TERMINATION. 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(a), any unused portion of prepaid rent shall be forfeited by Tenant should such termination occur within the first twenty five percent (25%) 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(a), any unused portion of prepaid rent shall be forfeited by Tenant should such termination occur within the first twenty five percent (25%) 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 (180) 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. Any such termination fee shall be in addition to forfeiture of the unused portion of prepaid rent as set forth in paragraph 4(a), should such termination occur within the first twenty five percent (25%) 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) Subject to the terms and provisions of paragraph 2(d), 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) Subject to the terms and provisions of paragraph 2(d), Landlord will not use, nor will Landlord permit its employees, tenants, licensees, 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 paragraph 9 as well as the indemnification of paragraph 11, 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 any subsequent agreements that may be created in accordance with the terms of paragraph 2(d); (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. 11. 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 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, subject to any subsequent agreements that may be created in accordance with the terms of paragraph 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. 13. REMOVAL/RESTORATION. 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. (b) 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. 1S. 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 after receipt of written notice from Landlord of such failure to pay; (ii) co-location of third party equipment on the Communication Facility support structure prior to an approved and fully executed lease agreement between Landlord and the third party for location and placement of the third party's ground equipment 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 5th Floor 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. CONDEMNATION. 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. 21. TAXES. Landlord shall be responsible for payment of all ad valorem taxes levied upon the lands, 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 subject to this Agreement and Tenant's rights hereunder. Subject to the provisions of paragraph 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 subject to the provisions of paragraph 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 10 ("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 (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 may be 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, 11 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 (10) business days prior written notice to the other party hereto. (k) Counterparts. This Agreement may be 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. [SIGNATURES ON FOLLOWING PAGES] 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the last date written below. WITNESSES: Print Name: ~E o i }' ~.f} t.~. Print Name: ~_ y : ~ C,(~~ (l id.,rY~ S ATTEST: B Y: Print Name: L,U' l ~ C ~- CITY CLERK "LANDLORD" Village of Tequesta, a Florida municipal corporation Print Name: PRtrc.~Gk 5 • cJa-rx, ~ Its: Mayor Date: Gj - 18 - 04 S' ~~ ~,; ~N~OgF'gC rn ~ ppAgT : a '~ ' ~ • 4, 19~.•O -~'~~ . ri;. ..... •.~,P..~• "TENANT" Print Name: ~E ~ ,it's S New Cingular Wireless PCS, LLC, By: AT&T Mobility Corporation Its: Manager Print Name: /?'1 By: Print E John Heggy Manager of ItS: Real Estate /Construction _ Date: ~~isl©~ 13 EXHIBIT 1 DESCRIPTION OF PREMISES Page I of 3 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"). PARENT TRACT A PORTION OF THE SOUTHWEST I/4 OF SECTION 30. TOWNSHIP 40 SOUTH RANGE 43 EAST PALM BEACH COUNTY FLORIDA. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE SOUTH 473.76 FEET OF THE WEST 250 FEET OF THE EAST 465.21 FEET OF THE SOUTHWEST I/4 OF SAID SECTION 30. LESS THE SOUTH 144.68 FEET OF THE EAST 23 FEET OF THE NORTH 18 FEET OF THE SOUTH 318 FEET OF THE EAST 22.9 FEET. AT&T MOBILITY LEASE PARCEL EAST TEQUESTA SITE A PORTION OF THE SOUTHWEST I/4 OF SECTION 30. TOWNSHIP 40 SOUTH RANGE 43 EAST. PALM BEACH COUNTY. FLORIDA. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE SOUTHEAST CORNER OF SAID SOUTHWEST I/4; THENCE SOUTH 88°47'52" WEST. ALONG THE SOUTH LINE OF SAID SOUTHWEST I/4, A DISTANCE OF 332.13 FEET; THENCE DEPARTING SAID SOUTH LINE. NORTH 00°28'02" WEST A DISTANCE OF 31.61 FEET TO THE POINT OF BEGINNING: THENCE SOUTH 89°31'58" WEST. A DISTANCE OF 23.00 FEET; THENCE NORTH 00°28'02" WEST. A DISTANCE OF 28.00 FEET; THENCE NORTH 89°31'58" EAST. A DISTANCE OF 23.00 FEET; THENCE SOUTH 00°28'02" EAST, A DISTANCE OF 28.00 FEET TO THE POINT OF BEGINNING. CONTAINING 0.0147 ACRES OR 644 SQUARE FEET, MORE OR LESS. Notes• I. This Exhibit may be replaced by a land surrey 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 govemmental authorities. 3. Width of access road shall be the width required by the applicable govemmental authorities, including police and firt: departments. ~. The type, numher and mounting positions and locations of antennas and transmission lines are illustrative only. Actual types, numbers and mounting positions may vary tom what is shown above. 14 EXHIBIT I DESCRIPTION OF PREMISES 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"). AT&T MOBILITY UTILITY EASEMENT EAST TEaUESTA SITE A PORTION OF THE SOUTHWEST I/4 OF SECTION 30. TOWNSHIP 40 SOUTH RANGE 43 EAST. PALM BEACH COUNTY FLORIDA. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE SOUTHEAST CORNER OF SAID SOUTHWEST I/4; THENCE SOUTH 86°47'52" WEST, ALONG THE SOUTH LINE OF SAID SOUTHWEST I/4, A DISTANCE OF 332.13 FEET; THENCE DEPARTING SAID SOUTH LINE. NORTH 00°28'02" WEST. A DISTANCE OF 31.61 FEET; THENCE SOUTH 89°31'58" WES T A DISTANCE OF 23.00 FEET; THENCE NORTH 00°28'02" WEST, A DISTANCE OF 28.00 FEET TO THE POINT OF BEGINNING: THENCE SOUTH 89°31'58" WEST. A DISTANCE OF 110.86 FEET= THENCE NORTH OI°12'08" WEST. A DISTANCE OF 5.00 FEET; THENCE NORTH 89°31'58" EAST, A DISTANCE OF 112.42 FEET: THENCE SOUTH 00°28'02" EAST. A DISTANCE OF 5.00 FEET; THENCE SOUTH 89°31'58" WEST. A DISTANCE OF 1.50 FEET TO THE POINT OF BEGINNING. CONTAINING 0.0128 ACRES OR 561 SQUARE FEET. MORE OR LESS. AT&T MOBILITY INGRESS'EGRESS EASEMENT EAST TEaUESTA SITE A PORTION OF THE SOUTHWEST I/4 OF SECTION 30. TOWNSHIP 40 SOUTH, RANGE 43 EAST PALM BEACH COUNTY FLORIDA. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE SOUTHEAST CORNER OF SAID SOUTHWEST I/4; THENCE SOUTH 88°47'52" WEST ALONG THE SOUTH LINE OF SAID SOUTHWEST I/4, A DISTANCE OF 332.13 FEET; THENCE DEPARTING SAID SOUTH LINE. NORTH 00°28'02" WEST A DISTANCE OF 31.61 FEET; THENCE SOUTH 89°31'58" WEST. A DISTANCE OF 23.00 FEETi THENCE NORTH 00°28'02" WEST. A DISTANCE OF 28.00 FEET; THENCE NORTH 89°31'58" EAST. A DISTANCE OF 1.50 FEET TO THE POINT OF BEGINNING: THENCE NORTH 00°28'02" WEST. A DISTANCE OF 40.96 FEET= THENCE NORTH 28°19'46" WEST, A DISTANCE OF 126.84 FEETi THENCE NORTH 00°50'50" WEST, A DISTANCE OF 196.41 FEETi THENCE NORTH 48°36'16" WEST. A DISTANCE OF 67. 7I FEET; THENCE NORTH OI°16'54" WEST. A DISTANCE OF 17.80 FEET; THENCE NORTH 88°47'52" EAST. A DISTANCE OF 20.00 FEET; THENCE SOUTH 01°16'54" EAST. A DISTANCE OF 9.01 FEETi THENCE SOUTH 48°36'16" EAST A DISTANCE OF 67.80 FEET; THENCE SOUTH 00°50'50" EAST, A DISTANCE OF 200.37 FEET; THENCE SOUTH 28°19'46" EAST, A DISTANCE OF 126.91 FEET; THENCE SOUTH 00°28'02" EAST A DISTANCE OF 45.92 FEETi THENCE SOUTH 89°31'58" WEST. A DISTANCE OF 20.00 FEET OT THE POINT OF BEGINNING. CONTAIN]NG 0.2065 ACRES OR 8997 SQUARE FEET. MORE OR LESS. 15 EXHIBIT 1 DESCRIPTION OF PREMISES Page 3 of 2 to the Agreement dated ~ "~ d 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 & Survey Attached] 16 ~~~~ s~~~ ~~ <~s~ ~~ ~~ € ~ Sm~ ~~~ v~ mS~ ~~~~ ~~~m~ EgEgg ~Qo "~mAS ~~~i~s~~ ~~3-'i& Sy'aa~ ~ti Qx'~ m ~ ~ ~ H r m j ~~ ~~ ox~ ToHE oNC w ~w PROPO'm 5'-0" N ~ I no kl anon umExr Jv~ I ~ -~I II ~~ ~~ _ ~ ~ ~,~ I ----~ I I %:~~E < 0 Q s ~ ~ ~ ~~ ~ ~ ~ Q ~~ ~ ~ s~ ~ ~ ~€ ~ ~~ ~ a ~ g ~ m ~ w ~~~~~ - n ~ o € [Dn ~4~s' ~oi+i K ~ >~ ~ ~~~ S m o~~: O ~ O z ~ m 3~=~~ -~~~~ ® I a A I ' ~ / ~e~ $g~~~ ~~s~ ~~~ ~~~ ~r~8~ _ ~ ~Q~~ ~~ I .. _____--.i~ /~ _--z~ ~ ~~ ------------ J/ I b ~Q I ~_ II ~ ~ - - ~ - - - ~~ ~ o _Aroaos~o rucvat wrrti caccuFO iuncxas o ix'-o' •ci. ~~~!!~~rrrrr ~~~ gj~ g ~ '-jam r ~ ~f II ~I ~ ~ir ~I ~i~ I ~ I ~~ 4 -- ~ - I I I a vxovosn s'-o' ~ ~ ~ ~ ~ usann ~ ~ I ~ I I I ~ ~ ~ ~ I ~ I o ~ I I ~ ___ I I ~ ~ I I I I ~ r I I ~ I I y I I ~ ` m I I w I I p I I ~ v I I ~ ~ ~ D I I ~ I I I I 0 I I ~~~=€ g ~ i ~ I I ~~gg I b z ~ €e I I ~ ~ ~ I ~ ~ I ~ I ~.. ~ it ~ ~ ~ i ~ ~ ~~ ~~ I 4 ~ s ~ ~ g ~ I' z ~'~ ~ II N ~~g ~~~ ~I ~ ~ I a ~~ j ~~~ ~ ~ ~ ~~ ~~~ ~'_o- ~ 1~n- T E S~ s ? F ~ > ~$~8 ~~. ~ ~ °••° Prepared by: Genevieve Simpson SBA Network Services, Inc. 5900 Broken Sound Parkway Boca Raton, Florida 33487 Return to• New Cingular Wireless PCS, LLC 12555 Cingular Way Alpharetta, GA 30004 Attn: Network Real Estate Administration Re: Cell Site #E. Tequesta: Cell Site Name: E. Tequesta Fixed Asset Number #: 10118803 State: Florida County: Palm Beach MEMORANDUM OF LEASE This Memorandum of Lease is entered into on this ~ ~ day of S ~~"1~, 2009, by and between Village of Tequesta, Florida, 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, Georgia 30004 (hereinafter referred to as "Tenant"). Landlord and Tenant entered into a certain Lease Agreement ("Agreement") on the day of ~ rrl ~~ , 2009, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Agreement. 2. The initial lease term will be ten (10) years ("Initial Term") commencing on the Effective Date of the Agreement, with four (4) successive five (5) year options to renew. 3. The portion of the land being leased to Tenant (the "Premises") is described in Exhibit 1 annexed hereto. 4. Landlord and Tenant agree that the Lease is not a sale, transfer, deviser or assignment of the subject property pursuant to the Unity of Title recorded at OR Book 18522 Page 1972. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions or provisions of the Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between the provisions of this Memorandum of Lease and the provisions of the Agreement, the provisions of the Agreement shall control. The Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assigns, subject to the provisions of the Agreement. IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first above written. WITNESSES: ~ ~~ Print Name: 3~ T T~/ ~-A u '~ ~i u~ ~Y~ e~e~~e-e.CCU--~- PrintName: ~+', IrY1P[~i1liCLrn~ "LANDLORD" Village ofTequesta, Florida, a Florida municipal corporation /~~ Print Name: f~r~-; L.ic//t -~ ~, f}7K i~.~s Its: Mayor Date: ~-~~-tU9 ATTEST: BY: ~ ~1~. ~~Q.,J1.~,cG Print Name: ~"" ~ M el,~~i~ CITY CLERK ~r T .....e ~~ ~~.'iA CRATED :' WITNESSES: Print Name: 7P Cll~l t'. ~ ' ; ', ~ (--~C _ <~~~~ yap-e,( Print Name: ~ ` ~~ ~~ G' l~ rn `e(~ "TENANT" New Cingular Wireless PCS, LLC. By: AT&T Mobility Corporation Its: Manager By: Print Name: ,loan Heggy Manager of ItS: Real Estate /Construction Date: ~`I ~ slog [Acknowledgements on following page] STATE OF ~1 ~ V )~~~ ) ss: COUNTY OF CMG ((~ ~ h~~ On the` day ofJ~, ?009, before me.personall ~ appeared~~j n { and acknowledged under oath that he is the~~ ~~~~nr~ i' of New Cingular ~~'ire ess ' PCS, LLC, the Tenant named in the attached it strument, and as such was authorized to execute this instrument on behalf of the ~{% Vl ~ h~ , Notary Public State of Florida Anita E Brommer My Cemmisswn D0501822 Fvni"~~ mi~ann~n STATE OF ~1 u~ i d q Notary Public: l~•ly Commission Expires: _f COUNTY OF ~Q,~ rn ~eaU., ) ss: I CERTIFY that on ~ ~' ,''009, S ~2,p~mb-~-- PDt.~ ~L ~ t ILi~I S name of representati~•e] personally came before me and acknowledged under oath that he or she: (a) is the 1\Iayor of the Village of Tequesta, Florida, the corporation named in the attached instrument, (b) was authorized to execute this instrument on behalf of the corporation and (c) executed the instrument as the act of the corporation. Ql 6~: n'lecv~ a.e ~ Notary Public: r~ty Commission Expires: E\HIBIT 1 Page 1 of 2 DESCRIPTION OF PREMISES to the Memorandum of Lease dated ~ . ~ ~~ , 2009, by and between Village of Tequesta, a Florida municipal corporation, as Landlord, and New Cingular Wireless PC S, LLC, a Delaware liability company, as Tenant. PARENT TRACT A PORTION OF THE SOUTHWEST I/4 OF SECTION 30, TOWNSHIP 40 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE SOUTH 473.76 FEET OF THE WEST 250 FEET OF THE EAST 465.21 FEET OF THE SOUTHWEST I/4 OF SAID SECTION 30. LESS THE SOUTH 144.68 FEET OF THE EAST 23 FEET OF THE NORTH IB FEET OF THE SOUTH 318 FEET OF THE EAST 22.9 FEET. AT&T MOBILITY LEASE PARCEL EAST TEQUESTA SITE .4 PORTION OF THE SOUTHWEST I/4 OF SECTION 30. TOWNSHIP 40 SOUTH. RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE SOUTHEAST CORNER OF SA[D SOUTHWEST I/4; THENCE SOUTH 88°47'52" WEST, ALONG THE SOUTH LINE OF SAID SOUTHWEST 1/4, A DISTANCE OF 332.13 FEET; THENCE DEPARTING SAID SOUTH LINE, NORTH 00°28'02" WEST, A DISTANCE OF 31.61 FEET TO THE POINT OF BEGINNING: THENCE SOUTH 89°31'58" WEST, A DISTANCE OF 23.00 FEET; THENCE NORTH 00°28'02" WEST. A DISTANCE OF 28.00 FEET; THENCE NORTH 89°31'58" EAST. A DISTANCE OF 23.00 FEET; THENCE SOUTH 00°28'02" EAST, A DISTANCE OF 28.00 FEET TO THE POINT OF BEGINNING. CONTAINING 0.0147 ACRES OR 644 SOUARE FEET, MORE OR LESS. EYHIBIT 1 Page 2 of 2 DESCRIPTION OF PREMISES to the Memorandum of Lease dated ~ J ~~ , 2009, by and between Village of Tequesta, a Florida municipal corporation, as Landlord, and New Cingular wireless PCS, LLC, a Delaware liability company, as Tenant. AT&T MOBILITY UTILITY EASEMENT EAST TEQUESTA SITE A PORTION OF THE SOUTHWEST I/4 OF SECTION 30. TOWNSHIP 40 SOUTH, RANGE 43 EAST. PALM BEACH COUNTY, FLORIDA. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE SOUTHEAST CORNER OF SAID SOUTHWEST I/4; THENCE SOUTH 88°47'52" WEST, ALONG THE SOUTH LINE OF SAID SOUTHWEST I/4, A DISTANCE OF 332.13 FEET; THENCE DEPARTING SAID SOUTH LINE. NORTH 00°28'02" WEST, A DISTANCE OF 31.61 FEET; THENCE SOUTH 89°31'58" WEST, A DISTANCE OF 23.00 FEET; THENCE NORTH 00°28'02" WEST, A DISTANCE OF 28.00 FEET TO THE POINT OF BEGINNING: THENCE SOUTH 89°31'58" WEST. A DISTANCE OF 110.86 FEET; THENCE NORTH OI°12'08" WEST, A DISTANCE OF 5.00 FEET; THENCE NORTH 89°31'58" EAST, A DISTANCE OF 112.42 FEET; THENCE SOUTH 00°28'02" EAST. A DISTANCE OF 5.00 FEET; THENCE SOUTH 89°31'58" WEST. A DISTANCE OF 1.50 FEET TO THE POINT OF BEGINNING. CONTAINING 0.0128 ACRES OR 561 SQUARE FEET. MORE OR LESS. AT&T MOBILITY INGRESS~EGRESS EASEMENT EAST TEQUESTA SITE A PORTION OF THE SOUTHWEST I/4 OF SECTION 30. TOWNSHIP 40 SOUTH. RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE SOUTHEAST CORNER OF SAID SOUTHWEST I/4; THENCE SOUTH 88°47'52" WEST, ALONG THE SOUTH L[NE OF SAID SOUTHWEST I/4. A DISTANCE OF 332.13 FEET; THENCE DEPARTING SAID SOUTH LINE. NORTH 00°28'02" WEST. A DISTANCE OF 31.61 FEET; THENCE SOUTH 89°31'58" WEST. A DISTANCE OF 23.00 FEET= THENCE NORTH 00°28'02" WEST. A DISTANCE OF 28.00 FEET; THENCE NORTH 89°31'58" EAST, A DISTANCE OF 1.50 FEET TO THE POINT OF BEGINNING: THENCE NORTH 00°26'02" WEST, A DISTANCE OF 40.96 FEET; THENCE NORTH 28°19'46" WEST, A DISTANCE OF 126.84 FEET; THENCE NORTH 00°50'50" WEST. A DISTANCE OF 196.41 FEET; THENCE NORTH 48°36'16" WEST. A DISTANCE OF 67.71 FEET; THENCE NORTH OI°16'54" WEST, A DISTANCE OF 17.80 FEET; THENCE NORTH 88°47'52" EAST. A DISTANCE OF 20.00 FEET; THENCE SOUTH OI°16'54" EAST. A DISTANCE OF 9.01 FEET; THENCE SOUTH 48°36'16" EAST, A DISTANCE OF 67.80 FEET; THENCE SOUTH 00°50'50" EAST, A DISTANCE OF 200.37 FEET; THENCE SOUTH 28°19'46" EAST, A DISTANCE OF 126. 9I FEET; THENCE SOUTH 00°28'02" EAST, A DISTANCE OF 45.92 FEET= THENCE SOUTH 89°31'58" WEST, A DISTANCE OF 20.00 FEET OT THE POINT OF BEGINNING. CONTAINING 0.2065 ACRES OR 8997 SQUARE FEET. MORE OR LESS. A AMERICAN TOWER'" C O R P O R A T I O N VIA FEUEX OVERNIGHT COURIER SERVICE October 30. 2009 Village of Tequesta 2~0 Tequesta Drive Suite 300 Tequesta, FL 33465 RE: OPTION AND LEASE ASSIGNMENT AND COMMENCEMF,NT NOTICE Site Name: E Tequesta; Site #: 273356 "ho Whom it May Concern Pursuant to paragraph 16 of the Lease Agreement by and between the Village of Tequesta and New Cingular Wireless PCS. LLC. a Delaware limited liabilit~~ compan~~, dated September 1 ~, 2009 (the "Lease'), American Towers. Inc.. a Delaw-are corporation ("American Tower') hereby gives notice that American Tower has taken assi~~nlnent of the Lease and all obligations and responsibilities therein defined. Furthermore, American Tower hereby notifies you that the Rent Commencement date is November 2. 2009. Please note that our notice address for all correspondence is: AMERICAN TOWF..R ATTN: LAND MANAGEMENT 10 PRESIDENTIAL WAY WOBURN, MA 01801 1=or questions about your lease agreement, rent pa~~ment, etc.. please contact oru- Landlord Relations Department: Email: Landlord.Relations ~r.~americantower com Phone: 1.866.86.9377 (select Option 1) Fas: 1.781926.=t5~5 Please include }'our tower number. name, and telephone number on all correspondence. 400 Regency Forest Drive Cary, NC 27511 919.468.0112 Office 919.466.5414 Fax • www.americantower.com We look forward to a long and mutually beneficial relationship with you as otu landlord. If you have any questions, please do not hesitate to contact us. Any capitalized terms used in this notice that are not defined herein shall have the meanings given those tei-~ns in the Lease, unless otherwise specified. Sincerel,~; J;. Jas D. Hirsch Vice President.. Land Management Site Name: E Tequesta ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT THIS ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT {"Assignment") is made and entered into as of this 1~ day of 2009 and effective as of the latter of the signature dates below ("Transfer Date") by New Cingular Wireless FCS, LLC, a Delaware limited IiabiIity company ("Assignor"), to American Towers, Inc., a Delaware corporation ("Assignee"). Frelirainary Statement On the 18'x' day of September, 2009, the Village of Tequesta ("Owner"), as landlord, and Assignor, as tenant, entered into that certain Lease Agreement, and any amendments thereto (the "Ground Lease") (attached hereto and incorporated herein as Exhibit A) for that certain parcel of real property ("Real Property") located in Palm Beach County, Florida, which Real Property is more particularly described in the Ground Lease. In consideration of the mutual covenants contained in this Assigmnent, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as follows: 1. ASSIGNMENT. As of the Transfer Date, Assignor hereby assigns and transfers all of its rights, title, claim and interest in, to and under the Ground Lease to Assignee and its successors and assigns. Assignor will indemnify, defend and hold harmless Assignee, its successors and assigns and their respective agents, employees, directors and officers from and against any claim, damage, loss, liability, obligation, demand, defense, judgment, suit, proceeding, disbursement or expense, including reasonable attorneys' fees or costs (including those related to appeals} of any nature whatsoever (collectively, "Losses and Liabilities"), arising out of or in any way related to the Ground Lease prior to the Transfer Date or which arise out of or are in airy way related to the Ground Lease after the Transfer Date on account of any fact or circumstance occurring or existing prior to the Transfer Date (except with respect to Ground Lease obligations that accrue on or after the Transfer Date). This Assignment is made in accordance with the terms of Section 16 of the Ground Lease. 2. ACCEPTAN'~.'E OF ASSIGNMENT. Assignee, as of the Transfer Date, hereby accepts the foregoing assignment of the Ground Lease and agrees to assume all of Assignor's obligations under the Ground Lease which obligations arise from or relate to the period after the Transfer Date. Assignee will indemnify, defend and hold harmless Assignor, its successors and assigns and their representatives, agents, employees, directors and officers from and against any and all Losses and Liabilities arising from or in any way related to the Ground Lease on and after the Transfer Date except for Losses and Liabilities which arise from or are in any way related to the Ground Lease after the Transfer Date on account of any fact or circumstance occurring or existing prior to the Transfer Date. 10/1 /2009 Site Name: E Tequesta 3. RECORDATION. Neither party shall record this Assignment. A Memorandum of Assignment in substantially the form attached hereto as Exhibit B may be recorded in place of this Assignment by Assignee. 4. ATTORNEYS' FEES AND COSTS. In the event of any litigation or arbitration between Assignor and Assignee arising out of this Assignment, the prevailing party will be entitled to recover all reasonable expenses and costs incurred in connection therewith, including reasonable attorneys' fees and costs but excluding any consequential, incidental or indirect loss or damage (including, without limitation, lost profits}, whether or not based upon events giving rise to indemnification hereunder. 5. BINDING EFFECT. This Assignment will be binding on and inure to the benefit of the parties herein, their heirs, executors, administrators, successors-in-interest and assigns. 6. GOVERNING LAWS. This Assignment will be governed by and construed in accordance with the laws of the State of Florida without regard to principles of conflicts of laws. 7. COUNTERPARTS. This Assignment may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. 8. SUPERSEDING AGREEMENTS. In the event any term hereof conflicts ~~•ith the terms of the Ground Lease or the certain Build to Suit Services Agreement between Assignor and Assignee dated as of April 23, 2007, the terms of this Assignment shall prevail. SIGNATURES TO FOLLOW 10/ 1 /2009 Site Name: E Tequesta THIS ASSIGNMENT has been e,cecuted by Assignor and Assignee effective as of the Transfer Date. ASSIGNOR: Witnesses: New Cingular Wireless PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its: Manager By: Printed Name: o n - Manager~of Its: Rea! Estate /Construction Date: logog ASSIGNEE: American Towers, Inc., a By: Printed Name: tts: Vice Tres Date: ! I~ .~/ G\ ---n ri ~ted Name: ~J~ ~~ Printed Name: ~~P~ t..tt~i'DNz~ I O/1/2009 Witnesses: Site Name: ~ Tequesta EXHIBIT A See attached Ground Lease dated September 18, 2008. 10/1/2009 Site Name: E Tequesta EXHIBIT B Memorandum of Assignment 10/1 /2009 Prepared by and Return To: American Tower Corporation 10 Presidential Way Woburn, MA 01801 Site Name: E Tequesta Memorandum of Assignment This Memorandum of Assignment is entered into on this day of 20 -and effective as of the date of latter signature below, by and between New Cingular Wireless PCS, LLC, a Delaware limited liability company, with a mailing address of 12555 Cingular Way, Alpharetta, GA 30004 ("Assignor") and American Towers, Inc., a Delaware corporation, with a mailing address of 10 Presidential Way, Woburn, MA 01801 ("Assignee"). 1. Assignor (as tenant) entered into a Lease Agreement, dated September 18, 2009 (the "Lease") with the Village of Tequesta (the "Property Owner"), regarding a portion of such land and/or improvements of the Property Owner as described in the Exhibit A attached hereto and incorporated herein. 2. Assignor and Assignee entered into an Assignment and Assumption of Lease Agreement (the "Assignment") of even date herewith, whereby Assignor transferred, assigned and conveyed its interest in the Lease to Assignee. To the extent the Property Owner's consent to such Assignment was required by the Lease, Assignor has obtained such consent. By virtue of the Assignment, Assignee has succeeded to all rights and obligations of the Assignor under the Lease. The terms, covenants and provisions of the Lease extend to and are binding upon the respective successors and assigns of Assignor and Assignee. 3. This Memorandum of Assignment is intended to give record notice of both the Lease (to the extent notice was not previously recorded and is not prohibited by the terms of the Lease) and the Assignment and of the rights created thereby, all of which are hereby ratified and confirmed in all respects by the pal•ties hereto. SIGNATURES TO FOLLOW 10/1/2009 IN WITNESS WHEREOF, the parties have executed this Memorandum of Assignment as of the date of the last party to sign. ASSIGNOR: New Cingular Wireless PCS, LLC, a Delaware limited Liability company Witnesses: By: AT&T Mobility Corporation lts: Manager By: Printed Name: Its: Date: ASSIGNEE: American Towers, [nc., a Delaware corporation By: Printed Name: Jason D. Hirsch Its: Vice President, Land Management Date: Printed Name: Printed Name: Witnesses: Printed Name: Printed Name: ACKNOWLEDGEMENTS TO FOLLOW i 0/1/2009 ASSIGNEE: COMMONWEALTH OF MASSACHUSETTS ) ss. COUNTY OF MIDDLESEX ) On this day of 20 before me, the undersigned notary public, personally appeared Jason D. Hirsch, Vice President, Land Management of American Towers, Inc., a Delaware corporation proved to n:e through satisfactory evidence of identification, which were rso~r~~~-~~ urrd~~r~fc„ro„~ to be the person whose name is signed on t11e preceding or attached docwnent, and acknowledged to me that helshe signed it voluntarily for its stated purpose. Notary Public Print Name: lbty commission e.cpires ASS [GNOR: STATE OF COUNTY OF Before me, the undersigned, a Notary Public for the State, personally appeared ,who is the ol'AT&T Mobility Corporation, as manager of New Cingular Wireless PCS, LLC, a Delav~~are limited Iiability company, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his/her authorized capacity, and that by his/her signature on the instrument, the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official stamp or seal, this day of [AFFIX NOTARY SEAL] Notary Public My commission expires: 10/1/2009 Memorandum of Assignment EXHIBIT A Legal Description The Property is legally described as follorvs: AT&T M1081LtTY 1EASE PARCEL EAST TEQUESTA SITE A PORTTON OF THE SOUTHWEST t/4 OF SECT]DN 30, TOWNSHIP aD 50UfH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS COMMENCE AT THE SpUTkEAST CORNER OF SAID SOUTHWEST !/d; THENCE SOUTH EB°47'52" 14E5T. ALONG THE. 50UTH LINE OF SA[0 SOUTHWEST {/A, A I)151ANCE OF 332.13 FEE i= THENCE DEPARTING SAID SOUTH LINO, NORTH 00°28'02' WE 5T, A DISTANCE CF 31.6! FEEL TO THE P01N1 OF BE:GINNENG: THENCE 50UTH 89°31'58" WEST, A DISTANCE OF 23.00 FEET; THENCE NOATw 00°28.02" wESr, A DI5TaNCE OF ?. B. OD F=E T: THENCE NORTH 8y•3i•5g^ EAST, A DISTANCE OF 23.00 FEET: THENCE SOUTH 00°26'02" EAST, A DISTANCE, OF x6..00 FEET TO TwE POINT OF BEGINNI-sG. CONTAINING 0.0147 ACRES OR 6dd SOUARE FEET, MDHE OR LE55. AT&T MOBILITY UTILITY EASEMEM EAST TEQUESTA SITE A PORTION OF THE SOUTHWEST 1/4 OF SECTION 30. TOWNSHIP 40 SOUTH. RANGE 43 EAST,- PALM BEACH COUNTY. FLORIDA, [iEiNG MORE PARTICULARLY 0£SCRlBEG A5 FOLLOwS~ COMMENCE A7 THE SOUTHEAST CORNER OF 5k10 SOUTHWEST I/d; THENCE SGUTH 68°d~'S2" WEST, ALONG THE SOUTH LENE OF SAID SOUTHWEST 1/4, A DISTANCE ~JF 332.13 FEET; THENCE DEPARTING SAID SOUTH LINE. NORTH 00°28'02" WEST, A DiSTANCe OF 31.b1 FEET: THENCE SOUTH 89°31'58" WEST, A D15TaNCE OF 23.00 FEET; THENCE NORTH 00°28'02" WEST, A DISTANCE OF 28.00 fEET TO THE Pp1NT OF BEG]NNIh'Go THENCE SOUTH 89°31'58" Wec"ST. A DISTANCE OF 114.65 FEET: THENCE NORTF+ QI°12'08" WEST, A DISTANCE CF 5.00 FEET: THENCE NORTH 89°31'58- EAST. A OISTANC~ OF 112.42 FEET;. THENCE SOUTH 00°28'02" EAST, a DISTaNCE OF 5.00 BEET: THENCE 50Ur4 84°3r'S6" WEST, a DISTANCE OF 1.50 FEET TO THE POINT OF BEGINNING. CONTA[NING 0.0126 ACRES OR 5fii 50UARE FEET, MOF;E OR LE55. Continued.. . 10/1/2009 AT&T MC)BILITY INCiRES&ECiRESS EASEMENT EAST TEaUESTA SITE A PORTION DF 7HE SOUTHWEST I/4 Of SECTeDN 3C, TUWVSHIP 40 SUUiH, fiANGL 43 EAST. PALM BEACH COUNTY, FLORIRA, [3E'sNG MCRE PARTICULARLY 7ESGR(9ED AS F OLLOW5 ~ COMMENCE AT THE SOUTHEAST CORNER OF SAID SOUTHY~EST I/4~ THENCE SOUTH 88°47.52' WEST, ALONG THE SOUTH LINE OF SA10 SOUTHWAST I/4, A DISTANCE DF 3]7.13 FEET: THENCE DEPARTING SAID SOUT1~ LINE, NORTiI 00°28'02" WEST'. A 015TANCE OF 3t.bt FEETe THENCE SOUTH 89°31'58" WEST.. A DISTANCE OF 23.00 FEe.ir THENCE NORTH QO°Z8'02" WEST. A DISTANCE OF 28.00 FEET= THENCE NORTH 89°31'58" EAST, A 0lSTANCE OF 1.50 FE"ci TO THE POINT Of DEC1NNlNG: THENCE NORTH oU°28.02' WEST. A DISTANCE OF 40.96 FEE Tr THENCE NORTH 78°!9'46" WEST, A DISTANCE OF 126.84 FEET= THENCE NORTH 00°50'50" WEST, a DISTANCE OF 196.4E FEET T:IENCE NORTH 48°36'16" WEST, A DISTANCE OF fi7.71 FEET: THENCE NORTM 01°16'54 " WEST, A DISTANCE OF 1T.8O FEETa TI~ENCE NORTH 88°47.52" EAST, A pISTANCE OF 20.00 FEEi~ THENCE SDUTH 01°16'54^ ~A5T, A OlSTANCE OF 9.OI FEE 1: THENCE SOUTH 48°36'16" EAST, A DISTANCE OF 67.80 FEET, THENCE SOUTH 00°50'50" EAST. a DISTANCE of 200.37 FE£T4 THENC£ SOUTH 28°19.46" EAST, A DISTANCE OF 126.91 FEET, THENCE SOTTTH 00°26'07." EAST° A DISTANCE OF 45.9?. FEETi THENCE 50;1TH 84°31'56" WEST. A DISTANCE OF 20.00 FEET Oi THE POINT OF E3EGINNlNG. CONTAINING 0.2065 ACRES OR 8997 SQUARE FEET, MDRE OR LES5. 10/I/2009