HomeMy WebLinkAboutDocumentation_Regular_Tab 10_07/10/2014 VILLAGE CLERK'S OFFICE
AGENDA ITEM TRANSMITTAL FORM
Meeting Date: Meeting Type: Regular Ordinance #:
7/10/14
Consent Agenda: No Resolution #:
Originating Department: Legal / Brad Gomberg
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Approval of Verizon Cell Tower Agreement for 901 North Dixie Hwy (Water Treatment Plant)
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Account #: Amount of this item:
Ool -000- 3�02. �r �
Current Budgeted Amount Available: Amount Remaining after item:
Budget Transfer Required: Chaose an Appropriate Fund Balance: Choose an item.
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Department Head Legal and Brad Gomberg ��-�, --�- �- -"- `
Finance Director or Representative l
Reviewed for Financial Sufficiency ❑
No Financial Impact ❑
Attorney: (for legal sufficiency)
Village Manager: �
Submit for Council Discussion: �
Approve Item: ❑
Deny Item: �
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Form Amended: 3/14/14
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ATTORNEYS AT LAW
I 111 Hypolwzo Road, Suite 207
o��v/`�„a�iu� �� ,�3�62
JOHN CORBETT TEI.EPHONE (561) 586-7116
TRELA J. WHITE 7'ELECOPIER (561) 586-9611
KE1TH W. DAVIS'
R. MAX LOHMAN * Board Certified in City, County and Local Govemment Law
ABIGAIL FORRESTER JORANDBY
JENNIFER GARDNER ASHTON "*AICP, LEED AP
ERIN L. DEADY, P.A., Of Counsel*'�
TO: Village Manager Couzzo
FROM: Village Attorney Davis
DATE: July 2, 2014
RE: Verizon Lease Agreements — Bridge Road and Old Dixie Sites
On June 27, 2014, after lengthy and detailed discussions that occurred over the past several
months with legal counsel for Verizon Wireless, and with the significant technical assistance of
Brad Gomberg, I provided you with two Lease Agreements as referenced above. Specifically, a
ground lease for the Bridge Road cell tower site (Verizon is separately contracting with
American Tower for tower space at this site), and a ground/tower lease for the Old Dixie
Highway cell tower site. The agreements provide the Village with annual revenue starting at
$36,000.00 each, escalating annually throughout the term of the agreements. The ground lease
has an initial term of 10 yeazs, to coincide with Verizon's tower lease with American Tower.
The groundltower lease has an initial term of 5 years. Both Lease Agreements, as is customary
in cell tower agreements, provide for renewals that are self-executing. Both Lease Agreements
provide for 4 additional ea�tension terms of 5 years each.
Also, as is customary in cell tower agreements, both Lease Agreements provide Verizon with
the ability to terminate under certain circumstances. While the Lease Agreements allow the
Village to terminate as well, in the event of a breach and failure to cure, they do not include a
termination "for convenience" provision. Although this type of termination clause is customary
in many agreements that the Village enters into, they are not typical in cell tower agreements.
The reason that they aze not typical is that the provider (Verizon in this case) invests significant
capital resources in installing their equipment and creating their network. Additionally, if the
Village ha.d. the ability to ternLate the Lease Agreements for no particular reason, there would
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be potential for disruption to the provider's network tha.t would exceed any benefit to their
locating at the particular site in the first place. An added complica.tion with the Bridge Road site
is that the ground lease with the Village and the tower lease with American Tower are dependent
on each other. One is pointless without the other, making a termination for convenience
provision even more problematic.
I also note that all current cell tower agreements to which the Village is a party (ma.ny pre-
da.ting my firm's representa.tion of the Village, and some from as recent as 2009) contain similar
termination provisions, as do previous agreements that are no longer in effect. Beyond that, I
have looked at cell tower agreements in other jurisdictions and also find termination language
that has the same effect as that contained in our proposed Verizon agreements.
It is my understanding tha.t one Village depariment head has ra.ised concern.s, and disagrees
with the absence of a"termination for convenience" provision in the proposed. Verizon
agreements. The argument made to me regazding the termination provisions was that if, in the
future, the state of the industry changes such that the Village might be able to get a better dea1,
we would not be able to termi.nate our agreement with Verizon for convenience, in order to try
and get a new tenant and more revenue. In response, I wonder what potential new tena.nt would
want to subject themselves to similar treatment (being terminated for convenience), at greater
expense. Further, I reiterate my position regarding these documents:
A great deal of time and effort has gone into crea.ting them. They are legally sufficient
beyond question and they provide the Village with a handsome revenue stream for a significant
aumber of years. The termination provisions are customary for this type of agreement, and have
consistently been adopted and approved by the Village, to my knowledge, without the objections
now being raised. Despite the foregoing, I have reached out to legal counsel for Verizon
regazding this issue. He has verified everything that I have previously discussed with you, as I
ha.ve now memorialized in this Memoraxidum. Verizon will not enter into agreements with the
Village if we insist on the type of termination provision that is desired by the complaining
department head. Verizon's reasons are as stated above.
It is my opinion that I have provided two lease agreements that benefit the Village; both of
which are legally su�cient and both of which contain favora.ble terms and conditions. I
specifically advise against pushing the issue that has been raised regardi.ng termination
provisions contained in the agreements.
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LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
LAND AND TOWER LEASE AGREEMENT
This Agreement, made this day of , 2014, between The Village of Tequesta,
Florida, a municipal corpora.tion with its principal offices located at
345 Tequesta Drive, Tequesta, Florida 33469, hereinafter designated LESSOR, and
Verizon Wireless Personal Communications LP d/b/a Verizon Wireless, a Delaware limited
parlaership, with its principal office located at One Verizon Way, Mail Stop 4AW100, Basking
Ridge, New Jersey 07920 (telephone number 866-862-4404), hereinafter designated LESSEE.
The LESSOR and LESSEE are at times collectively referred to hereinafter as the "Parties" or
individually as the "Part�'.
WI�REAS, LESSOR owns the Property located at 901 Old Dixie Highway, Tequesta,
Florida 33469 which contains, among other thi.ngs, an e�cisting equipment shed a.nd a
communications tower; and
WHEREAS, LESSEE desires to lease ground space comprised of portions of LESSOR'S
property located at 901 Old Dixie Highway, Tequesta, Florida 33469, including the existi.ng
equipment shed, as well as space on the communications tower, from LESSOR in connection with
the provisions of communications services.
NOW, TI�REFORE, in consideration of the mutual covenants herein set forth and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. PREMISES AND TOWER SPACE. LESSOR hereby leases to LESSEE a portion
of that certain parcel of property (the entirety of LESSOR's property is referred to hereinafter as
the "Propert�') located at 901 N. Old Dixie Highway, Tequesta, Florida 33469, and being
described as a three hundred (300) square foot parcel of ground space, includi.ng the existing
equipment shed located thereon (the "Land Space"), together with the non-exclusive right (the
"Rights of Way") for ingress and egress, seven (7) days a week twenty-four (24) hours a day, on
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LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
foot or motor vehicle, including trucks, over the Properiy extending from the nearest public
right-of-way to the Land Space, as specified below, for the use and maintena.nce of the existing
equipment shed, and for the installation, use and maintena.nce of utility wires, poles, cables,
conduits, and pipes over, under, or along the Land Space.
LESSOR also leases to LESSEE a portion of LESSOR'S existing communications tower
(the "Tower") located on the Properry, in order for LESSEE to erect, operate and maintain
communications antennas thereon. LESSEE shall have the right to locate up to six (6) antennas
on the Tower. Notwithstanding a.nything in this Agreement to the contrary, the parties
acknowledge and agree that Exhibit B(as is hereafter defined) depicts the exact location of
LESSEE's initial installation of three (3) antennas on the Tower space, but that the exact location
of the entirety of the Tower space as may be used for up to three (3) future antennas may not be
shown on Exhibit B but is nonetheless included in leased Tower space. LESSEE may install up
to three (3) additional antennas, at approlcimately the same height levels identified in Exhibit B,
for a total of six (6) antennas upon subsequent application to LESSOR for same, as specified in
Paragraph 9 below. Notwithstanding anything contained herein, LESSOR shall maintain
exclusive ownership of the Tower and has the exclusive right to rent, lease or license all other
space on the Tower to third parties and to collect the rent from any such leases or licenses.
The Land Space, Rights of Way, and Tower space leased to LESSEE aze hereinafter
refened to as the "Premises" and is more particularly described in Exhibit "A" attached hereto
and made a part hereof. The Property is likewise described herein in Exhibit "A" attached hereto
and made a part hereof. A site sketch depicting the location of the tower, LESSEE'S antennas
thereon, and the equipment shelter is attached hereto as Exhibit "B".
2. ACCESS. LESSEE shall have access to Premises seven (7) da.ys a week twenty-
four (24) hours a day. Notwithstanding the foregoing, LESSEE shall give LESSOR'S plant
operator 24 hours advance notice prior to accessing the Tower at (561)-575-6235 during business
hours (8:00 a.m. - 5:00 p.m. Monday through Friday), and (561)-262-4326 after hours, except in
the case of an emergency. LESSEE shall comply with all reasonable security procedures
esta.blished by LESSOR to prevent unauthorized access to the Premises and the Property
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LESSEE Site I.D.: Tequesta. Flag Pole, Site No. 68510
generally. LESSOR and LESSEE shall each designate emergency conta.ct personnel to notify in
case of an emergency requiring access to the Premises. LESSOR reserves the right to enter the
Premises at any time to visually inspect the Premises and/or Tower or to show the Premises and
/or Tower to prospective licensees, lenders, or purchasers.
3. SURVEY. LESSOR also hereby grants to LESSEE the right to survey the
Property, and the Premises, and sa,id survey shall then become Exhibit "C" which shall be attached
hereto and made a part hereof, and shall control in the event of boundary and access discrepancies
between it and Exhibit "A". Cost for such work shall be bome by LESSEE.
4. TERM; RENTAL. This Agreement shall be effective as of the date of execution
by both Parties, provided, however, the initial term shall be for five (5) years and shall
commence on the Commencement Date (as hereinafter defined) at which time rental payments
shall commence and be due annually at a rental of Thirty Six Thousand and 00/100 Dollars
($36,000.00) to be paid on the Commencement Date, and each annual anniversary of the
Commencement Date, in advance, to LESSOR or to such other person, fum or place as LESSOR
may, from time to time, designate in writing at least thirty (30) days in advance of any rental
payment date by notice given in accordance with Paragraph 24 below. The Agreement shall
commence based upon the date LESSEE is granted a building permit by the governmental agency
chazged with issuing such permits, or the date of execution of the Agreement by the Parties,
whichever is later. In the event the date at which LESSEE is granted a building perm.it or the
date of execution of the Agreement, whichever is applicable, falls between the 1�` and 15�' of the
month, the Agreement shall commence on the l st of that month and if such date falls between the
16�' and 31 �` of the month, then the Agreement shall commence on the 1�` day of the following
month (either the "Commencement Date"). LESSOR and LESSEE acknowledge and agree that
initial rental payment(s) shall not actually be sent by LESSEE until thirty (30) days after the
Commencement Date. By way of illustration of the preceding sentence, if the Commencement
Date is January 1, LESSEE shall send to the LESSOR the first annual rental payment by
February 1.
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LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
a. Upon agreement of the Parties, LESSEE may pay rent by electronic funds transfer
and in such event, LESSOR agrees to provide to LESSEE bank routing information for such
purpose upon request of LESSEE.
b. LESSOR hereby agrees to provide to LESSEE, in conjunction with the execution
of this Agreement, certain documentation (the "Rental Documentation") evidencing LESSOR's
interest in, and right to receive payments under, this Agreement, including without limitation: (i)
documentation, acceptable to LESSEE in LESSEE'S reasonable discretion, evidencing
LESSOR'S good and sufficient title to and/or interest in the Property and right to receive rental
payments and other benefits hereunder; (ii) a complete and fully executed Internal Revenue
Service Form W-9, or equivalent, in a form acceptable to LESSEE, for any party to whom rental
payments aze to be made pursuant to this Agreement; and (iii) other documentation necessary for
evidencing LESSOR'S interest in, or right to receive rental payments and other benefits
hereunder, requested by LESSEE in LESSEE'S reasonable discretion. From time to time during
the Term of this Agreement and within thirty (30) days of a written request from LESSEE,
LESSOR agrees to provide upda.ted Rental Documentation in a form reasonably acceptable to
LESSEE. The Rental Documentation shall be provided to LESSEE in accorda.nce with the
provisions of and at the address given in Paragraph 24.
c. Delivery of Rental Documenta.tion to LESSEE shall be a prerequisite for the
payment of any rent by LESSEE and notwithstanding anything to the contrary herein, LESSEE
shall have no obligation to make any rental payments until Rental Documentation has been
supplied to LESSEE as provided herein; provided, however, in the event any amounts which
would otherwise be due have not been paid by LESSEE due to the absence of Rental
Documentation, such amounts shall be paid to LESSOR by LESSEE within forty-five (45) days
of the delivery of Rental Documentation to LESSEE.
d. Within fifteen (15) days of obtaining an interest in the Property or this
Agreement, any assignee(s), transferee(s) or other successor(s) in interest of LESSOR shall
provide to LESSEE Rental Documentation in the manner set forth in the preceding paragraph.
From time to time during the Term of this Agreement and within thirty (30) days of a written
request from LESSEE, any assignee(s) or transferee(s) of LESSOR agrees to provide upda.ted
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LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
Rental Documentation in a form reasonably acceptable to LESSEE. Delivery of Rental
Documentation to LESSEE by any assignee(s), transferee(s) or other successor(s) in interest of
LESSOR shall be a prerequisite for the payment of any rent by LESSEE to such pa.rty and
notwithstanding anything to the contrary herein, LESSEE shall have no obligation to make any
rental payments to any assignee(s), transferee(s) or other successor(s) in interest of LESSOR
until Rental Documentation has been supplied to LESSEE as provided herein; provided,
however, in the event any amounts which would otherwise be due have not been paid by
LESSEE due to the absence of Rental Documentation, such amounts shall be paid to LESSOR,
or any assignee(s), transferee(s) or other successor(s) in interest of LESSOR, as applicable, by
LESSEE within forty-five (45) days of the delivery of Rental Documentation to LESSEE.
5. EXTENSIONS. This Agreement shall automatically be extended for four (4)
additional five (5) year terms unless LESSEE terminates it at the end of the then current term by
giving LESSOR written notice of the intent to terminate at least six (6) months prior to the end of
the then current term.
6. EXTENSION RENTALS. For purposes of this Paragraph 5, a"Lease Year" shall be
defined as the twelve-month period which commences on the Commencement Date or annual
anniversary thereof, as applicable, and end on the day immediately preceding the next successive
anniversary of the Commencement Date. Commencing on the first annual anniversary of the
Commencement Date and on each annual anniversary thereafter during the Term of this
Agreement (including all extension terms), the annual rental fee shall increase by the greater of :(i)
an amount equal to four percent (4%) of the monthly rental fee due for the immediately preceding
Lease Year, or (ii) an increase determined by a formula as follows:
Renewal Rent =(Basic Rent)+((IlZ-IL)/II, X Basic Rent)
Definitions: IR is the Consumer Price Index for the month
which is three (3) months immediately
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LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
preceding the month in which the second Lease Year
and each succeeding Lease Year commence.
IL is the Consumer Price Index for the month
which is three 3 months immediately preceding
the month in which this Agreement commenced.
"Consumer Price Index" shall mean the Consumer Price Index published by the
Bureau of Labor Statistics of the United States Deparl�ment of La.bor for Urban Wage
Earners and Clerical Workers for All Items (CPI V� U.S. City avera.ge or shall mean the
successor thereto. In the event the Consumer Price Index is converted to a different
standard reference base or otherwise revised, the determination of the rent for the second
Lease Year and each succeeding Lease Year shall be made with the use of such conversion
factor, formula or table for converting the Consumer Price Index as may be published by
the Bureau of Labor Sta.tistics, or if the Bureau should fail to publish the same, then with
the use of such conversion factor, formula or table for converting the Consumer Price Index
as may be published by any nationally recognized publisher of similar sta.ristical
information. If the Consumer Price Index ceases to be published and there is no successor
thereto, such other index as LESSOR and LESSEE may agree upon shall be substituted for
the Consumer Price Index, and if they are unable to agree, then such matter shall be
submitted to arbitration in accordance with the then existing commercial rules of arbitration
of the American Arbitra.tion Association at the American Arbitration Association office
nearest the LESSEE.
7. ADDTTIONAL EXTENSIONS. If at the end of the fourth (4th) five (5) year
extension term this Agreement has not been term.i.nated by either Party by giving to the other
written notice of an intention to terminate it at least three (3) months prior to the end of such term,
this Agreement shall continue in force upon the same covena.nts, terms and conditions for a fiuther
term of five (5) years and for five (5) year terms thereafter until terminated by either Party by
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LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
giving to the other written notice of its intention to so terminate at least three (3) months prior to
the end of such term. Annual rental for each such additional five (5) yeaz term shall be calculated
pursuant to Paragraph 6 above. The initial term and all extensions shall be collectively referred to
herein as the "Term".
8. TAXES. LESSEE shall have the responsibility to pay any personal property, real
estate taxes, assessments, or charges owed on the Property which LESSOR demonstrates is the
result of LESSEE'S use of the Premises and/or the insta.11ation, maintenance, and operation of
the LESSEE'S improvements, and any sales tax imposed on the rent (except to the extent that
LESSEE is or may become exempt from the payment of sales tax in the jurisdiction in which the
Property is located), including any increase in real estate taxes at the Property which LESSOR
demonstrates arises from the LESSEE'S improvements and/or LESSEE'S use of the Premises.
LESSOR and LESSEE shall each be responsible for the payment of any taxes, levies,
assessments and other charges imposed including franchise and similar taxes imposed upon the
business conducted by LESSOR or LESSEE at the Property. Notwithsta.nding the foregoing,
LESSEE shall not have the obligation to pay any tax, assessment, or charge that LESSEE is
disputi.ng in good faith in appropriate proceedings prior to a final determination that such tax is
properly assessed provided that no lien attaches to the Properiy. Nothing in this Pazagraph sha.11
be construed as making LESSEE liable for any portion of LESSOR'S income taxes in
connection with any Property or otherwise. Except as set forth in this Paragraph, LESSOR shall
have the responsibility to pay any personal property, real estate taxes, assessments, or charges
owed on the Property and shall do so prior to the imposition of any lien on the Property.
LESSEE shall have the right, at its sole option and at its sole cost and expense, to appeal,
challenge or seek modification of any tax assessment or billing for which LESSEE is wholly or
partly responsible for payment. LESSOR shall reasonably cooperate with LESSEE at
LESSEE'S expense in filing, prosecuting and perfecting any appeal or challenge to ta.xes as set
forth in the preceding sentence, including but not limited to, executing any consent, appeal or
other similar document. In the event that as a result of any appeal or challenge by LESSEE,
there is a reducrion, credit or repayment received by the LESSOR for any taxes previously paid
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LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
by LESSEE, LESSOR agrees to promptly reimburse to LESSEE the amount of said reduction,
credit or repayment. In the event that LESSEE does not have the standing rights to pursue a
good faith and reasonable dispute of any taxes under this paragraph, LESSOR will pursue such
dispute at LESSEE'S sole cost and expense upon written request of LESSEE.
9. USE; GOVERNMENTAL APPROVALS. LESSEE shall use the Premises for the
piupose of constructing, maintaining, repairing and operating a communications facility and uses
incidental thereto. LESSEE shall maintain, at its sole cost and expense, its equipment in good
condition, reasonable wear and tear excepted. All work performed on the Premises shall be
performed by licensed contractors specializing in such work, shall be performed in a good and
worl�anli.ke manner, and sha.11 be prosecuted to completion in accorda.nce with the plans,
specificarions and issued permits. Any damage caused to the Property, including the Premises, due
to the acts or omissions of LESSEE or its agents, contractors or employees, shall be repaired by
LESSEE at LESSEE'S sole cost and expense, excepti.ng normal wear and tear and casualTy
damage.
LESSEE shall, prior to any use of the Premises, relocate the existing generator located on
the Premises to a location depicted in Exhibit B or any location mutually agreed upon between the
parties.
LESSEE shall have the right to replace, repair, or othervvise modify its utilities, equipment,
antennas and/or conduits or any portion thereof and the frequencies over which the equipment
operates, whether the equipment, antennas, conduits or frequencies are specified or not on any
exhibit attached hereto, during the Term. With respect to Lessee's ground space, the equipment
specified in Exhibit B may be repaired, replaced or added to by Lessee without Lessor's consent,
provided Lessee does not use any space beyond that which is designated in Section 1(c) above.
However, with respect to LESSEE space on the Tower, LESSEE shall not at any ti.me construct
or install any additional antennas or equipment or make any improvements, additions,
modifications or alterations other than those approved by LESSOR, without the written consent
of LESSOR, which will not be unreasonably withheld, conditioned or delayed. Notwithstanding
the foregoing, LESSEE acknowledges that the appearance of the Tower and its compatibility
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LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
with the surrounding areas is a significant and major concern of LESSOR. The equipment
shelter shall be landscaped, fenced and secured by, and at the sole expense of, the LESSEE using
an eight foot high security fence and vegetation approved by the LESSOR LESSOR grants
LESSEE any additional ground space necessary to comply with the landscaping, fencing and
security requirements above. Addirionally, LESSOR shall have the sole and exclusive discretion
to approve or deny a request for the insta.11ation of additional equipment and/or antennas located
on LESSEE's Tower space, based solely on aesthetics. In no event shall LESSEE be permitted to
make changes or modifications which: (i) expand or materially change or alter the LESSEE'S
use of the Premises; (ii) a.re installed outside of the boundaries of the Premises; or (iii) may
otherwise adversely affect the structure or appearance of the Premises or Tower.
Whenever LESSEE desires to ma.ke alterations, improvements, modifications, additions
or other changes to the equipment or antennae on LESSEE's Tower space, designated on Exhibit
B, then LESSEE, prior to making said changes, shall provide LESSOR with plans and
specifications which fully describe the equipment and/or antennae to be installed. The plans and
specifications shall be reviewed by LESSOR and approved prior to the commencement of any
proposed changes or improvements. After LESSOR'S approval of the plans and specifications,
an updated Exhibit B to this Agreement shall be prepared by LESSEE and signed by both
LESSOR and LESSEE; thereafter, LESSOR and LESSEE shall amend the Agreement to
substitute the updated Exhibit B for the prior Exhibit B.
It is understood and agreed that LESSEE'S ability to use the Premises is contingent upon
its obtaining after the execution date of this Agreement all of the certificates, permits and other
approvals (collectively the "Governmental Approvals") that may be required by any Federal, State
or Local authorities as well as satisfactory soil boring tests and structural analysis which will
permit LESSEE use of the Premises as set forth ahove which will permit LESSEE use of the
Premises as set forth above. LESSOR shall cooperate with LESSEE in its effort to obtain such
approvals and shall take no action which would adversely affect the status of the Property,
including the Premises, with respect to the proposed use thereof by LESSEE. In the event that (i)
any of such applications for such Governmental Approvals should be finally rejected; (ii) any
Governmental Approval issued to LESSEE is canceled, expires, lapses, or is otherwise
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LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
withdrawn or terminated by governmental authority; (iii) LESSEE determines that such
Governmental Approvals may not be obtained in a timely manner; (iv) LESSEE determines that
any soil boring tests or structural analysis is unsatisfactory; (v) LESSEE determines that the
Premises is no longer techn.ically compatible for its use, or (vi) LESSEE, in its sole discretion,
determines that the Premises is obsolete or unnecessary, LESSEE shall have the right to
terminate this Agreement. Notice of LESSEE's exercise of its right to termi.nate shall be given to
LESSOR in writing by certified mail, return receipt requested, and shall be effective upon the
mailing of such notice by LESSEE, or upon such later date as designated by LESSEE. All rentals
paid to said termination date shall be retained by LESSOR Upon such termination, this
Agreement shall be of no fiuther force or effect except to the extent of the representations,
wamanties and indemnities made by each Party to the other hereunder. Othervvise, the LESSEE
shall have no fiu�ther obligations for the payment of rent to LESSOR
10. IlVDEMNIFICATION. Each Party shall indemnify and hold the other harmless
against any claim of liability or loss from personal injury or property damage resulting from or
arising out of the negligence or willful misconduct of the indemnifying Party, its employees,
contractors or agents, except to the extent such claims or damages may be due to or caused by
the negligence or willful misconduct of the other Party, or its employees, contractors or agents.
Notwithstanding anything in this Agreement to the contrary, LESSOR'S liability shall be limited
by the statutory amounts set forth in SEC. 768.28, Flof-ida Statutes, including the limits
regarding attomey's fees. Nothing contained in this Agreement shall be construed as a waiver of
LESSOR's sovereign immunity beyond the waivers set forth in Sec. 768.28, Florida Statutes.
1Vothing conta.ined in this Agreement shall be construed as LESSOR'S consent to be sued.
11. INSURANCE. LESSOR shall, at its own cost and expense, maintain broad form
property insurance of at least One Million Dollars ($1,000,000.00). At its sole discretion,
LESSOR may be self-insured for such coverage. LESSEE shall, at its own cost and expense,
maintain commercial general liability insurance with limits not less than $1,000,000 for injury to
or death of one or more persons in any one occurrence and $500,000 for damage or destruction
to property in any one occurrence. LESSEE shall include LESSOR as an additional insured.
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LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
12. LIMITATION OF LIABILITY. Except for indemnification pursuant to Paragraphs
10 and 30, neither Parry shall be liable to the other, or any of their respective agents,
representatives, employees for any lost revenue, lost profits, loss of technology, rights or
services, incidenta.l, punirive, indirect, special or consequential damages, loss of data, or
interruption or loss of use of service, even if advised of the possibility of such damages, whether
under theory of contract, tort (including negligence), strict liability or otherwise.
Notwithstanding anything in this Agreement to the contrary, LESSOR'S liability shall be limited
by the statutory amounts set forth in SEC. 768.28, Florida Statutes, including the limits
regarding attomey's fees. Nothing contained in this Agreement shall be construed as a waiver of
LESSOR's sovereign immunity beyond the waivers set forth in Sec. 768.28, Flo�ida Statutes.
Nothing contained in this Agreement shall be construed as LESSOR'S consent to be sued.
13. ANNUAL TERMINATION. Notwithstanding anything to the contrary contained
herein, provided LESSEE is not in default hereunder beyond applicable notice and cure periods,
LESSEE shall have the right to terminate this Agreement upon the annual anniversary of the
Commencement Date provided that six (6) months prior notice is given to LESSOR. In the
event LESSEE chooses to terminate the Agreement pursuant to this section, it shall pay to
LESSOR a termination fee equal to three (3) times the preceding month's rent.
14. INTERFERENCE. LESSEE agrees to install equipment of the type and frequency
which will not adversely affect or cause harmful interference which is measurable in accordance
with then existing industry standards to any equipment of LESSOR or other lessees of the
Property which equipment existed on the Property prior to the date this Agreement is executed
by the Parties. In the event any after-installed LESSEE'S equipment causes such interference,
and after LESSOR has notified LESSEE in writing of such interference, LESSEE will take all
commercially reasonable steps necessary to correct and eliminate the interference, including but
not limited to, at LESSEE'S option, powering down such equipment and later powering up such
equipment for intermittent testing. In no event will LESSOR be entitled to terminate this
Agreement or relocate the equipment as long as LESSEE is making a good faith effort to remedy
11
LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
the interference issue. LESSOR agrees that LESSOR and/or any other tenants of the Properiy
who currently have or in the future take possession of the Property will be permitted to install
only such equipment that is of the type and frequency which will not adversely affect or cause
harmful interference which is measurable in accordance with then existi.ng industry standards to
the then existing equipment of LESSEE. The Parties acknowledge that there will not be an
adequate remedy at law for noncompliance with the provisions of this Paragraph and therefore,
either Party shall have the right to equitable remedies, such as, without limitation, injunctive
relief and specific performance.
15. TOWER COMPLIANCE. LESSOR covenants that it will keep the Tower in good
repair as required by all Laws (as defined in Paragraph 35 below). The LESSOR shall also
comply with all rules and regulations enforced by the Federal Communications Commission with
regard to the lighting, marking and painting of towers. If the LESSOR fails to make such
repairs including maintenance the LESSEE may make the repairs and the costs thereof shall be
payable to the LESSEE by the LESSOR on demand together with interest thereon from the date
of payment at the greater of (i) ten percent (10%) per annum, or (ii) the highest rate perm.itted by
applicable Laws. If the LESSOR does not make payment to the LESSEE within ten (10) days
after such demand, the LESSEE shall have the right to deduct the costs of the repairs from the
succeeding monthly rental amounts normally due from the LESSEE to the LESSOR.
No materials may be used in the installation of the antennas or transmission lines that will
cause corrosion or rust or deteriorarion of the Tower structure or its appurtenances.
All antenna(s) on the Tower must be identified by a marking fastened securely to its
bracket on the Tower and all transmission lines are to be tagged at the conduit opening where it
enters any user's equipment space.
Not later than fifteen (15) days followi.ng the execution of this Agreement, LESSOR shall
supply to LESSEE copies of all structural analysis reports that have been done, if any, with
12
LESSEE Site I.D.: Tequesta. Flag Pole, Site No. 68510
respect to the Tower and throughout the Term, LESSOR shall supply to LESSEE copies of all
structural analysis reports that are done with respect to the Tower promptly after the completion
of the same.
16. REMOVAL AT END OF TERM. LESSEE shall, upon expiration of the Term, or
within ninety (90) days after any earlier termination of the Agreement, remove its buildi.ng(s),
antennas, equipment, conduits, fixtures and all personal property and restore the Premises to its
original condition, reasonable wear and tear and casualty damage excepted. The existing
equipment shed is the property of LESSOR and shall not be removed except with the express
written consent of LESSOR. LESSOR agrees and acknowledges that all of the equipment,
conduits, fixtures and personal property of LESSEE shall remain the personal property of
LESSEE and LESSEE shall have the right to remove the same at any time during the Term,
whether or not said items are considered fixtures and attachments to real property under
applicable Laws (as defined in Paragraph 35 below). If such time for removal causes LESSEE to
remain on the Premises after termination of this Agreement, LESSEE shall pay rent at the then
existing monthly rate or on the existing monthly pro-ra.ta basis if based upon a longer payment
term, until such time as the removal of the buildi.ng, antenna structure, fixtures and all personal
property are completed. LESSOR expressly waives all rights of levy, distraint or execution with
respect to LESSEE's property, including without limitation any statutory or common law security
interest or landlord's lien for rent.
17. HOLDOVER. LESSEE has no right to retain possession of the Premises or any part
thereof beyond the expiration of that removal period set forth in Paragraph 16 herein, unless the
Parties are negotiating a new lease or lease extension in good faith. In the event that the Parties
are not in the process of negotiating a new lease or lease extension in good faith, LESSEE holds
over in violation of Pazagraph 16 and this Paragraph 17, then the rent then in effect payable from
and after the time of the expiration or earlier removal period set forth in Paragraph 16 shall be
equal to the rent applicable during the month immediately preceding such expiration or earlier
termination.
13
LESSEE Site I.D.: Tequesta. Flag Pole, Site No. 68510
18. ELECTRICAL SERVICE LESSEE shall insta.11 an electrical meter at the Premises
for the measurement of electrical power used by LESSEE'S operations. LESSEE is responsible
for paying the costs of such electrical usage directly to the local utility provider. If it is
determined that LESSEE has consumed electrical service or other utilities which aze in addition
to those metered by LESSEE'S sepazate meter, LESSOR shall have the right to invoice LESSEE
for any such charges, which shall be in addition to the rent and other payments required to be
made by LESSEE under this Agreement. LESSOR will not be liable for any inteiruption or
stoppage of electrical service to the Premises or for any damage to persons or property resulting
from that intemiption or stoppage, unless caused by the negligence or willful misconduct of
LESSOR, its employees, servants or agents.
19. RIGHTS UPON SALE. Should LESSOR, at any time during the Term decide (i) to
sell or transfer all or any part of the Property or the Tower thereon to a purchaser other than
LESSEE, or (ii) to grant to a third party by easement or other legal instrument an interest in and
to that portion of the Tower and or Property occupied by LESSEE, or a larger portion thereof, for
the purpose of operati.ng and maintain.ing communications facilities or the management thereof,
such sale or grant of an easement or interest therein shall be under and subject to this Agreement
and any such purchaser or transferee shall recognize LESSEE'S rights hereunder under the terms
of this Agreement. To the extent that LESSOR grants to a third party by easement or other legal
instrument an interest in and to tha.t portion of the Tower and/or Property occupied by LESSEE
for the purpose of operating and maintaining communications facilities or the management
thereof and in conjunction therewith, assigns this Agreement to said third party, LESSOR shall
not be released from its obligations to LESSEE under this Agreement, and LESSEE shall have
the right to look to LESSOR and the third party for the full performance of this Agreement.
Nothing contained in this Paragraph 18 shall in any way impact LESSOR'S right to lease
additional Tower space or additional ground space on the Property which does not interfere with
LESSEE'S use of the Premises, including Tower space as described in Paragraph 1.
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LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
20. QiJIET ENJOYMENT. LESSOR covenants that LESSEE, on paying the rent and
performing the covenants herein, shall peaceably and quietly have, hold and enjoy the Premises.
21. TITLE. LESSOR represents and warrants to LESSEE as of the execution date of
this Agreement, and covenants during the Term that LESSOR is seized of good and sufficient
title and interest to the Property and has full authority to enter into and execute this Agreement.
LESSOR further covenants during the Term that there are no liens, judgments or impediments of
title on the Property, or affecti.ng LESSOR'S title to the same and that there are no covenants,
easements or restrictions which prevent or adversely affect the use or occupancy of the Premises
by LESSEE as set forth above.
22. INTEGRATION. It is agreed and understood that this Agreement contains all
agreements, promises and understandings between LESSOR and LESSEE and that no verbal or
oral agreements, promises or understandings shall be binding upon either LESSOR or LESSEE
in any dispute, controversy or proceedi.ng at law, and any addition, variation or modification to
this Agreement shall be void and ineffective unless made in writing signed by the Parties. In the
event any provision of the Agreement is found to be invalid or unenforceable, such finding shall
not affect the validity and enforceability of the remain.i.ng provisions of this Agreement. The
failure of either Party to insist upon strict performance of any of the terms or conditions of this
Agreement or to exercise any of its rights under the Agreement shall not waive such rights and
such Pa.rty shall have the right to enforce such rights at any time and take such action as may be
lawful and authorized under this Agreement, in law or in equity.
23. GOVERNING LAW. This Agreement and the performance thereof shall be
govemed, interpreted, construed and regulated by the Laws of the Sta.te in which the Property is
located.
24. ASSIGNMENT; SUBLETTING. This Agreement may be sold, assigned or
transferred by LESSEE without any approval or consent of LESSOR to LESSEE's principal,
15
LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
affiliates, subsidiaries of its principal or to any entity which acquires all or substantially all of
LESSEE'S assets in the ma.rket defined by the Federa.l Communications Commission in which
the Property is located by reason of a merger, acquisition or other business reorganization. As to
other parties, this Agreement may not be sold, assigned, subleased or transferred without the
written consent of LESSOR, which such consent will not be unreasonably withheld, delayed or
conditioned. No change of stock ownership, partnership interest or control of LESSEE or
transfer upon partnership or corporate dissolution of LESSEE shall constitute an assignment
hereunder.
The parties expressly understand and agree that LESSOR shall have the sole and
exclusive right to lease additional space on the Tower and on the Property for the installation of
additional antennas, cables and equipment. All rent or other compensation derived from the rent
of additional Tower and/or Property space shall belong exclusively to LESSOR, and LESSEE
shall have no rights or claims to any such revenues. The sale, assignment, subletting or
transferring of any rights or space conferred hereunder in violarion of the terms of this Pazagraph
23 shall constitute a material breach of this Agreement by LESSEE and LESSOR shall have the
right to terminate this Agreement effective immediate and to pursue all legal and equitable
remedies available to it under this Agreement and applicable law.
25. NOTICES. All notices hereunder must be in writing and shall be deemed validly
given if sent by certified mail, retum receipt requested or by commercial courier, provided the
courier's regular business is delivery service and provided further that it guarantees delivery to
the addressee by the end of the next business day following the courier's receipt from the sender,
addressed as follows (or any other address that the Party to be notified may have designated to
the sender by like notice):
16
LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
LESSOR: Village of Tequesta, Florida
345 Tequesta Drive
Tequesta, Florida 33469
LESSEE: Verizon Wireless Personal Communications LP
dlb/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained
putsuant to the foregoing.
26. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal
representa.tive, successors and assigns of the Parties hereto.
27. SUBORDINATION AND NON-DISTURBANCE. At LESSOR'S option, this
Agreement shall be subordinate to any future master lease, ground lease, mortgage, deed of trust
or other security interest (a "Mortgage") by LESSOR which from time to time may encumber all
or part of the Property; provided, however, as a condition precedent to LESSEE being required
to subordinate its interest in this Agreement to any future Mortgage covering the Property,
LESSOR shall obtain for LESSEE'S benefit a non-disturbance and attornment agreement for
LESSEE'S benefit in the form reasonably satisfactory to LESSEE, and containing the terms
described below (the "Non-Disturbance Agreement"), and shall recognize LESSEE'S right to
remain in occupancy of and have access to the Premises as long as LES5EE is not in default of
this Agreement beyond applicable notice and cure periods. The Non-Disturbance Agreement
shall include the encumbering party's ("Lender's") agreement that, if Lender or its
successor-in-interest or any purchaser of Lender's or its successor's interest (a "Purchaser")
acquires an ownership interest in the Property, Lender or such successor-in-interest or Purchaser
will (1) honor all of the terms of the Agreement, (2) fulfill LESSOR'S obligations under the
Agreement, and (3) promptly cure all of the then-existing LESSOR defaults under the
Agreement. Such Non-Disturbance Agreement must be binding on all of Lender's participants
in the subject loan (if any) and on all successors and assigns of Lender and/or its participants and
on all Purchasers. In return for such Non-Disturbance Agreement, LESSEE will execute an
17
LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
agreement for Lender's benefit in which LESSEE (1) confirms that the Agreement is subordinate
to the Mortgage or other real properiy interest in favor of Lender, (2) agrees to attom to Lender if
Lender becomes the owner of the Property and (3) agrees to accept a cure by Lender of any of
LESSOR'S defaults, provided such cure is completed within the deadline applicable to LESSOR
In the event LESSOR defaults in the payment and/or other performance of any mortgage or other
real property interest encumbering the Property, LESSEE, may, at its sole option and without
obligation, cure or correct LESSOR'S default and upon doing so, LESSEE shall be subrogated to
any and all rights, titles, liens and equities of the holders of such mortgage or other real property
interest and LESSEE shall be entitled to deduct and setoff against all rents that may otherwise
become due under this Agreement the sums paid by LESSEE to cure or correct such defaults.
28. RECORDING. LESSOR agrees to execute a Memorandum of this Agreement
which LESSEE may record with the appropriate recording officer. The da.te set forth in the
Memorandum of Lease is for recording purposes only and bears no reference to commencement
of either the Term or rent payments.
29. DEFAULT.
a. In the event there is a breach by LESSEE with respect to any of the
provisions of this Agreement or its obligations under it, including the payment of rent, LESSOR
shall give LESSEE written notice of such breach. After receipt of such written notice, LESSEE
shall have fifteen (15) days in which to cure any monetary breach and thirty (30) days in which
to cure any non-monetary breach, provided LESSEE shall have such extended period as may be
required beyond the thirty (30) days if the nature of the cure is such that it reasona.bly requires
more than thirly (30) days and LESSEE commences the cure within the thirty (30) day period
and thereafter continuously and diligently pursues the cure to completion. LESSOR may not
maintain any action or effect any remedies for default against LESSEE unless and until LESSEE
has failed to cure the breach within the time periods provided in this Para.graph.
b. In the event there is a breach by LESSOR with respect to any of the
provisions of this Agreement or its obligations under it, LESSEE shall give LESSOR written
notice of such breach. After receipt of such written notice, LESSOR shall have thirty (30) days
18
LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
in which to cure any such breach, provided LESSOR shall have such extended period as may be
required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires
more than thirty (30) da.ys and LESSOR commences the cure within the thirty (30) day period
and thereafter continuously and diligently pursues the cure to completion. LESSEE may not
maintain any action or effect any remedies for default against LESSOR unless and until
LESSOR has failed to cure the breach within the time periods provided in this Paragraph.
Notwithstandi.ng the foregoing to the contrary, it shall be a default under this Agreement if
LESSOR fails, within ten (10) days after receipt of written notice of such breach, to perform an
obligation required to be performed by LESSOR if the failure to perform such an obligation
interferes with LESSEE'S ability to conduct its business on the Properry; provided, however,
that if the nature of LESSOR'S obligarion is such that more than ten (10) days after such notice
is reasonably required for its performance, then it shall not be a default under this Agreement if
performance is commenced within such ten (10) day period and thereafter diligently pursued to
completion.
30. REMEDIES. Upon a default, the non-defaulting Party may at its oprion (but
without obligation to do so), perform the defaulting Party's duty or obligation on the defaulting
Party's behalf, including but not limited to the obtaining of reasonably required insurance
policies. The costs and expenses of any such performance by the non-defaulting Party shall be
due and payable by the defaulting Party upon invoice therefor. In the event of a default by either
Party with respect to a material provision of this Agreement, without limiting the non-defaulting
Party in the exercise of any right or remedy which the non-defaulting Party may have by reason
of such default, the non-defaulting Party may terminate the Agreement and/or pursue any remedy
now or hereafter available to the non-defaulti.ng Party under the Laws or judicial decisions of the
state in which the Premises aze located; provided, however, LESSOR shall use reasonable efforts
to mirigate its damages in connection with a default by LESSEE. If LESSEE so performs any of
LESSOR'S obligations hereunder, the full amount of the reasonable and actual cost and expense
incurred by LESSEE shall immediately be owing by LESSOR to LESSEE, and LESSOR shall
pay to LESSEE upon demand the full undisputed amount thereof with interest thereon from the
date of payment at the greater of (i) ten percent (10%) per annum, or (ii) the highest rate
19
LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
permitted by applicable Laws. Notwithstanding the foregoing, if LESSOR does not pay
LESSEE the full undisputed amount within thirty (30) days of its receipt of an invoice setting
forth the amount due from LESSOR, LESSEE may offset the full undisputed amount, including
all accrued interest, due against all fees due and owing to LESSOR until the full undisputed
amount, including all accrued interest, is fully reimbursed to LESSEE.
31. ENVIRONMENTAL.
a. LESSOR will be responsible for all obligations of compliance with any
and all environmental and industrial hygiene laws, including any regulations, guidelines,
standards, or policies of any governmental authorities regulating or imposing standa.rds of
liability or standards of conduct with regard to any environmental or industrial hygiene
conditions or concems as may now or at any time hereafter be in effect, that are or were in any
way related to activity now conducted in, on, or in any way related to the Tower or Property,
unless such conditions or concerns a.re caused by the specific activiries of LESSEE in the
Premises.
b. LESSOR shall hold LESSEE harmless and indemnify LESSEE from and
assume all duties, responsibility and liability at LESSOR'S sole cost and expense, for all duties,
responsibilities, and liability (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 in any way related to: a) failure to comply with
any environmenta.l or industrial hygiene law, including without limitation any regulations,
guidelines, standards, or policies of any governmenta.l authorities regulating or imposing
standards of liability or standards of conduct with regard to any environmenta,l or industrial
hygiene concerns or conditions as may now or at any time hereafter be in effect, unless such non-
compliance results from conditions caused by LESSEE; and b) any environmental or industrial
hygiene conditions arising out of or in any way related to the condition of the Tower or Property
or activities conducted thereon, unless such environmental conditions are caused by LESSEE.
Notwithstanding anything in this Agreement to the contrary, LESSOR'S liability shall be limited
by the statutory amounts set forth in Sec. 768.28, Florida Statutes, includi.ng the limits regarding
20
� LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
attomey's fees. Nothing contained in this Agreement shall be construed as a waiver of
LESSOR's sovereign immunity beyond the waivers set forth in Sec. 768.28, Florida Statutes.
Nothing contained in this Agreement shall be construed as LESSOR'S consent to be sued.
32. CASUALTY. In the event of damage by fire or other casualty to the Tower or
Premises that cannot reasonably be expected to be repaired within forly-five (45) days following
same or, if the Property is da.maged by fire or other casualty so that such damage may reasonably
be expected to disrupt LESSEE'S opera.tions at the Premises for more than forty-five (45) days,
then LESSEE may, at any time following such fire or other casualty, provided LESSOR has not
completed the restoration required to permit LESSEE to resume its operation at the Premises,
terminate this Agreement upon fifteen (15) days prior written notice to LESSOR. Any such
notice of termination shall cause this Agreement to expire with the same force and effect as
though the date set forth in such notice were the date originally set as the expiration date of this
Agreement and the Parties shall make an appropriate adjustment, as of such termination date,
with respect to payments due to the other under this Agreement. Notwithstandi.ng the foregoing,
the rent shall abate during the period of repair following such fire or other casualty in proportion
to the degree to which LESSEE'S use of the Premises is impaired.
33. CONDEMNATION. In the event of any condemnation of all or any portion of the
Property, this Agreement shall terminate as to the part so ta.ken as of the date the condemning
authority takes title or possession, whichever occurs first. If as a result of a partial condemnation
of the Premises or Tower, LESSEE, in LESSEE'S sole discretion, is unable to use the Premises
for the purposes intended hereunder, or if such condemnation may reasonably be expected to
disrupt LESSEE'S operations at the Premises for more than foriy-five (45) days, LESSEE may,
at LESSEE'S option, to be exercised in writing within fifteen (15) days after LESSOR shall have
given LESSEE written notice of such taking (or in the absence of such notice, withi.n fifteen (15)
days after the condemning authority shall have taken possession) terminate this Agreement as of
the date the condemning authority takes such possession. LESSEE may on its own behalf make
a claim in any condemnation proceeding involving the Premises for losses related to the
21
LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
equipment, conduits, fixtures, its relocation costs and its damages and losses (but not for the loss
of its leasehold interest). Any such notice of termi.narion shall cause this Agreement to expire
with the same force and efFect as though the date set forth in such notice were the date originally
set as the expiration date of this Agreement and the Parties shall make an appropriate adjustment
as of such termination date with respect to payments due to the other under this Agreement. If
LESSEE does not terminate this Agreement in accordance with the foregoing, this Agreement
shall remain in full force and effect as to the portion of the Premises remaining, except that the
rent shall be reduced in the same proportion as the rentable area of the Premises taken bears to
the total rentable area of the Premises. In the event that this Agreement is not terminated by
reason of such condemnation, LESSOR shall promptly repair any damage to the Prem.ises caused
by such condemning authority.
34. SUBMISSION OF AGREEMENT/PARTIAL INVALIDTTY/AUTHORITY. The
submission of this Agreement for examination does not constitute an offer to lease the Premises
and this Agreement becomes effective only upon the full execution of this Agreement by the
Parties. If any provision herein is invalid, it shall be considered deleted from this Agreement and
shall not invalida.te the remaining provisions of this Agreement. Each of the Pa.rties hereto
warrants to the other that the person or persons executing this Agreement on behalf of such Party
has the full right, power and authority to enter into and execute this Agreement on such Party's
behalf and that no consent from any other person or entity is necessary as a condition precedent
to the legal effect of this Agreement.
35. APPLICABLE LAWS. Duri.ng the Term, LESSOR shall maintain the Property and
all structural elements of the Premises in compliance with all applicable laws, rules, regulations,
ordinances, directives, covenants, easements, zoning and land use regulations, and restrictions of
record, permits, building codes, and the requirements of any applicable fire insurance
underwriter or rating bureau, now in effect or which may hereafter come into effect (including,
without limita.tion, the Americans with Disabilities Act and laws regulating hazazdous
substances) (collectively "Laws"). LESSEE shall, in respect to the condition of the Premises and
22
LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
at LESSEE'S sole cost and expense, comply with (a) all Laws relating solely to LESSEE'S
specific and unique nature of use of the Premises (other than general office use); and (b) all
building codes requiri.ng modifications to the Premises due to the improvements being made by
LESSEE in the Premises.
36. SURVIVAL. The provisions of the Agreement relati.ng to indemnification from one
Party to the other Pariy shall survive any term.ination or expiration of this Agreement.
Additionally, any provisions of this Agreement which require performance subsequent to the
termination or expiration of this Agreement shall also survive such termination or expiration.
37. CAPTIONS. The captions conta.ined in this Agreement are inserted for convenience
only and are not intended to be part of the Agreement. They shall not affect or be utilized in the
construction or interpreta.tion of the Agreement.
23
LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective seals
the day and year first above written.
LESSOR:
WITNESS Village of Tequesta, Florida
BY:
Name: Name:
Title:
Date:
Name:
LESSEE:
Verizon Wireless Personal Communications LP
d/b/a Verizon Wireless
WITNESS
BY:
Name: Name: Aparna Khurjekar
Area Vice President Network
Date:
Name:
24
LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
Exhibit "A"
(Description of Premises and of Property)
(Lessee is referred to in this Exhibit as "Verizon Wireless")
Description of Property:
The South 600.79 feet (measured at right angles to the South fine thereof). of
the Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section
30, Township 40 South� Range 43 East� Palm Beach County, Florida, lying East
of the Easterly Right of Way line of Old Dixie Highway as described in Order
of Taking recorded in Official Records Book 6548� Page 1319. of the Public
Records of Palm Beach County. Florida.
Description of Land Space:
A parcel of land being a portlon of the South 600.79 feet of the Northwest 1/4 of the NarthN�t 1/4 of Sectlon 30,
Townehip 40 Sauth, Range 43 Eaet, Palm Beach Cou�ty, Florida, aoid parcel more particularly deaeribed as follovr�
COMMENCING at the Southeaet corner of satd Northwest 1/4 of the Northwest 1/4 of Sectlon 30, proceed North 89'
57' 03" West along the South Iine of said Northwest 1/4 of the Northwest 1/4 a dfetance of 230.56 feet; thence
departfig last satd Ilne, North 00' 02' S7 East a distance oi 412.56 feet to the POINT OF BEGINNING; thence
North 35' 27' 46 West a distance of 25.00 feet; thence North 54' 32' 14 East a dietance of 12.00 feet; thence
S�th 35' 27' 48" East a diatance of 25.00 feet; thence South 54' 32' 14 West a distance of 1200 feet to
the POINT OF BEGlNNIIdG.
Containfig an area of 300 equare feet
Description of Rights of Way:
DESCRIPTIOPI OF VERIZON WIRELESS GROUND RIPIG EASEMENT
A 3.00 foot ride strip of land baing a portton of the South 800.79 feet oi the Northwest 1/4 of the Northwest i/4 of Sectlon
30, Townahlp 40 South, Range 43 Eaet, Palm Beach County, Florfda, eaid parcel more particularly described as followa:
COMMENCING at the Southeast comer of said Northwest 1/4 of the Northwest 1/4 of Sectlon 30, proceed North 89'
57' 03 West along the South Iine of said Northwest 1/4 of the Northw�t 1/4 a diatance of 230.56 feet; thence
departing laat satd Iine, North 00' 02' 57 Eaet a dletance of 41256 feet; thence South 09' 32' 14 West a dtstance
of 4.24 feet to the POINT OF BEGIPINING; thence North 35' 27' 46 West c dlatance of 31.00 feet; thence North 54'
32� 14' East a diatance of 18.00 feet; thence South 35' 27' 48 East a diatance of 31.00 feet; thence South 54' 32'
14" Weat a distance of 18.00 feet to the POINT OF BEGINNING.
LESS AND EXCEPT THE FOLLOWING DESCRIBED PARCEL:
A parcel of land being a portfon of the South 600.79 feet of the Northweat 1/4 of the Northwest 1/4 of Section 30,
Townahip 40 South, Range 43 Eoat, Palm Beach County, Florida, said parcel more particularly described as followa:
COMMENCING at the Southeast comer of said Northweat 1/4 of the Northwest 1/4 of 5ection 30, proceed North 89'
57' 03" West along the South Iine of eaid Idorthwest 1/4 of the Northweat 1/4 a distance of 230.56 feet; thence
d�arting laet eaid line, North 00' 02' 57' Eaet a dfetance of 41256 feat to the POINT OF BEGINNING; thence
North 35' 27' 46 West a distance of 25.00 4eet; thence North 54' 32� 14 East a dietance of 12.00 feet; thence
South 35' 27' 46" East a dletance of 25.00 feet; thence South 54' 32' 14 Weat a dtstance of 12.00 feet to
the POINT OF BEGINNIPIG.
Sald 3.00 foot wide strip containing a net area of 258 equare feet
25
LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
DESCRIPTION OF VERIZON WIRELESS STOOP EASEMENT
A parcel of land being a portion of the South 600.79 feet of the Northwest 1/4 of the Northwest 1/4 of Sectlon 30,
Townehip 40 South, Range 43 East, Palm Beach County. Florida, said parcel mora particularly described as follows:
CObIMENCiN6 at the Southeast comer of eatd Northwest 1/4 of the Northwest 1/4 oi Section 30, prxeed North 89'
57' 03" West along the South Ilne of sald Northwest 1/4 of the Northwest 1/4 a distance of 230.58 feet; thence
departing laet satd Iine, North 00' 02' S7" East a diatance of 412.58 feet; thence North 54' 32' 14 East a diatance
of 12.00 feet; thence North 35' 27' 48 W�t a dletance of 19.49 feet to the POINT OF BEGINNING; thence continue
North 35' 27' 46 West a dtetance of 4.00 feet; thence North 54' 32' 14 East a distance of 3.75 feet; thence
South 35' 27' 46 Eaet a dtatance of 4.00 feet; thence South 54' 32' 14' West a distance of 3.75 feet to
tha POINT OF BEGINNING.
Cmitalning an area of 15 square teet
DESCRIPTION OF VERIZON WIRELESS 3' ICE BRIDGE EASEMENT
A 3.00 foot wide strip of I�d being a pwUon of the South 800.79 feet oi the Northw�t 1/4 of the Northw�t 1/4 of Sectlon
30, Townehtp 40 South, Range 43 East, Palm Beach County, Florida, the atdelines of said sMp lying 1.50 feet on each
slde of the following d�crtbed centeriine:
COMMENCING at the Southeast comer of eatd Northeeat 1/4 of the Northwest 1/4 of Section 30, proceed North 89'
57' U3 West along the South Itne of said Northwest 1/4 of the Northwest 1/4 a dtat�ce of 230.56 feet; thence
d�arting laet safd Ilne, North 00' 02' 57 East a dietance oi 41256 feet; th�ce North 54' 32' 14 East a distance
of 12.00 feet; thence North 35' 27' 46 W�t a dlatance of 5.51 feet to the POIWT OF BEGINNING of the herein
deacrtbed centerllne; thence North 56' 10' 32" East a dfetance of 4.81 feet to the POINT OF TERMINATION of the
herefi described centerline.
The sidelines of said strip to be eztended or trimmed, as necessary, to form one contlguoue ahape �d to meet a bearfig
of North 35' 27' 46 West at the Pofnt of Beginning.
Containing an area of 14.4 square feet, more or lese.
In addition to the above, Lessee shall have non-exclusive access and utility rights across the
Property as necessary to connect the Premises to the neazest public right of way.
Tower Space: Space at the 105' level on the Tower, as depicted in Exhibit B atta.ched hereto.
26
LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
Exhibit "B"
(Site Sketch)
(LESSEE may be referred to as"Verizon" in this Exhibit)
(See Attached)
27
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LESSEE Site I.D.: Tequesta Flag Pole, Site No. 68510
Exhibit "C"
(LESSEE'S Survey)
(LESSEE is referred to in this depiction as "Verizon Wireless")
(See Atta.ched)
28
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Prepared By and Upon Recording, Retum to:
Nitin Datt, Esq.
c/o Maria Martella, Florida Registered Paralegal
Holland & Knight LLP
515 E. Las Olas Boulevard
Suite 1200
P.O. Boz 14070
Fort Lauderdale, Florida 33301
STATE OF FLORIDA )
)
COUNTY OF PALM BEACH )
Lessee Site ID: Tequesta Flag Pole, Site No. 68510
MEMORANDUM OF LAND AND TOWER LEASE AGREEMENT
This MEMORANDUM OF LAND AND TOWER LEASE AGREEMENT
("Memorandum") is made this day of , 20_, beiween THE
VILLAGE OF TEQUESTA, FLORIDA , a Florida municipal corporation with its principal
offices located at 345 Tequesta Drive, Tequesta, Florida 33469, hereinafter referred to as
�LESSOR�, and VERIZON WIRELESS PERSONAL COMMUNICATIONS LP d/b/a
Verizon Wireless, a Delaware limited partnership with its principal office located at One
Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920, hereinafter referred
to as "LESSEE". LESSOR and LESSEE are at times collectively referred to hereinafter as
the �Parties" or individually as the "Part�'.
1. LESSOR and LESSEE entered into a Land and Tower Lease Agreement (the
"AgreemenY') on , 20 for an initial term of five (5) years,
commencing on the Commencement Date (as defined below). The Agreement
shall automatically be extended for four (4) additional five (5) year terms unless
the LESSEE terminates it at the end of the then current term by giving the
LESSOR written notice of the intent to terminate at least six (6) months prior to
the end of the then current term. If at the end of the fourth (4th) five (5) year
extension term the Agreement has not been terminated by either Party by giving
to the other written notice of an intention to terminate it at least three (3) months
prior to the end of such term, the Agreement shall continue in force upon the
same covenants, terms and conditions for a further term of five (5) years and for
1
five (5) year terms thereafter until terminated by either Party by giving to the
other written notice of its intention to so terminate at least three (3) months prior
to the end of such term.
2. LESSOR hereby leases to LESSEE a portion of that certain parcel of property
(the entirety of LESSOR's property is referred to hereinafter as the "Property")
located at 901 N. Old Dixie Highway, Tequesta, Florida 33469, and being
described as a three hundred (300) square foot parcel of ground space, including
the existing equipment shed located thereon (the "Land Space"), together with
the non exclusive right (the "Rights of Way") for ingress and egress, seven (7)
days a week twenty four (24) hours a day, on foot or motor vehicle, including
trucks, over the Property extending from the nearest public right of way to the
Land Space, as specified below, for the use and maintenance of the existing
equipment shed, and for the installation, use and maintenance of utility wires,
poles, cables, conduits, and pipes over, under, or along the Land Space.
LESSOR also leases to LESSEE a portion of LESSOR'S existing
communications tower (the `Tower") located on the Property, in order for
LESSEE to erect, operate and maintain communications antennas thereon. The
Land Space, Rights of Way, and Tower space leased to LESSEE are hereinafter
referred to as the "Premises° and is more particularly described in Exhibit "A"
attached hereto and made a part hereof. The Property is likewise described
herein in Exhibit "A" attached hereto and made a part hereof. A site sketch
depicting the location of the Tower and equipment shed is attached hereto as
Exhibit "B".
3. The Commencement Date of the Agreement, of which this is a Memorandum, is
based upon the date LESSEE is granted a building permit by the govemmental
agency charged with issuing such permits, or the date of execution of the
Agreement by the Parties, whichever is later. In the event the date at which
LESSEE is granted a building permit or the date of execution of the Agreement,
whichever is applicable, falls between the 1 st and 15th of the month, the
Agreement shall commence on the 1 st of that month and if such date falls
befinreen the 16th and 31 st of the month, then the Agreement shall commence on
the 1st day of the following month (either the "Commencement Date").
4. Should LESSOR, at any time during the Term decide (i) to sell or transfer all or
any part of the Property or the Tower thereon to a purchaser other than LESSEE,
or (ii) to grant to a third party by easement or other legal instrument an interest in
and to that portion of the Tower and or Property occupied by LESSEE, or a larger
portion thereof, for the purpose of operating and maintaining communications
facilities or the management thereof, such sale or grant of an easement or
2
interest therein shall be under and subject to this Agreement and any such
purchaser or transferee shall recognize LESSEE'S rights hereunder under the
terms of this Agreement. To the extent that LESSOR grants to a third party by
easement or other legal instrument an interest in and to that portion of the Tower
and/or Property occupied by LESSEE for the purpose of operating and
maintaining communications facilities or the management thereof and in
conjunction therewith, assigns this Agreement to said third party, LESSOR shall
not be released from its obligations to LESSEE under this Agreement, and
LESSEE shall have the right to look to LESSOR and the third party for the full
performance of this Agreement. Nothing contained in this Paragraph 4 shall in
any way impact LESSOR'S right to lease additional Tower space or additional
ground space on the Property which does not interFere with LESSEE'S use of the
Premises, including Tower space as described in Exhibit A.
5. The terms, covenants and provisions of the Agreement, the terms of which are
hereby incorporated by reference into this Memorandum, shall extend to and be
binding upon the respective executors, administrators, heirs, successors and
assigns of LESSOR and LESSEE.
Remainder of Page Intenfionally Blank
Signature Page to Follow
3
IN WITNESS WHEREOF, hereunto and to a duplicate hereof, LESSOR and
LESSEE have caused this Memorandum to be duly executed on the date first written
hereinabove.
LESSOR:
WTTNESS Village of Tequesta, Florida
BY:
Name: Name:
Title:
Date:
Name:
LESSEE:
Verizon Wireless Personal Communications LP
d/b/a Verizon Wireless
WITNESS
BY:
Name: Name: Aparna Khurjekar
Area Vice President Network
Date:
Name:
4
STATE OF FLORIDA )
) LESSOR ACKNOWLEDGMENT
COUNTY OF PALM BEACH )
I, , do hereby certify that personally
came before me this day and acknowledged that s/he is the of THE
VILLAGE OF TEQUESTA, FLORIDA, a municipal corporation, and s/he, being
authorized to do so, executed the foregoing MEMORANDUM OF LAND AND TOWER
LEASE AGREEMENT as his/her own act and deed on behalf of THE VILLAGE OF
TEQUESTA, FLORIDA. He/She is personally known to me or has produced
as identification.
WITNESS my hand and official Notarial Seal, this day of , 20_.
Notary Public
My Commission Expires:
STATE OF NORTH CAROLINA )
) LESSEE ACKNOWLEDGMENT
COUNTY OF MECKLENBURG )
I, , do hereby certify that Aparna Khurjekar personally came
before me this day and acknowledged that she is the Area Vice President Nefinrork of
VERIZON WIRELESS PERSONAL COMMUNICATIONS LP d/b/a Verizon Wireless, a
Delaware limited partnership, and that she, as Area Vice President Network, being
authorized to do so, executed the foregoing MEMORANDUM OF LAND AND TOWER
LEASE AGREEMENT on behalf of VERIZON WIRELESS PERSONAL
COMMUNICATIONS LP d/b/a Verizon Wireless. She is personally known to me.
WITNESS my hand and official Notarial Seal, this day of , 20_.
Notary Public
My Commission Expires:
5
EXHIBIT A
(Description of Premises and of Property)
(Lessee is referred to in this Exhibit as "Verizon Wireless")
Description of Property:
The South 600.79 feet (measured at right angles to the South tine thereof}. of
the Northwest Quorter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section
30, Township 40 South, Range 43 Ea�t, Palm Beach County, Florida, lying East
of the Easterly Right of Way iine of Old Dixie Highway as described in Order
of Taking recorded in Official Records Book 6548. Page 1319. of the Public
Records of Palm Beach County. Flo�ida.
Description of Land Space:
A parcel of land being o portion of the South 600.79 feet of the Northweat 1/4 of the Northwest 1/4 of Section 30,
Townehip 40 South, Range 43 East, Palm Beach County, Florida, eaid parcel more particuiarly descrfbed as followa:
CdMMENCING at the S�theaet comer of said Northw�t 1/4 of the Northwest 1/4 of Sectfon 30, proceed Plorth 89'
57' 03 Weat along the South Iine of said Northwest 1J4 of the Northwest 1/4 a distance of 230.56 feet; thence
departing last said Iine, North 00' 02� 57 East a dlatance of 412.56 feet to the POINT OF BEGINNING; thence
Nmth 35' 27' 46 West a distance of 25.00 feet; thance North 54' 32' 14 East a dletance of 12.00 feet; thence
Saith 35' 27' 46 East a dietance of 25.00 feet; thenee South 54' 32' 14 Weat a distance of 12.00 feet to
the POINT OF BEGINNING.
Containtng an area af 300 equare feet
Description of Rights of Way:
DESCRIPTION OF VERIZON WIRELESS GROUND RING EASEMENT
A 3.� foot �ide strip oi land being a p�tion of the South 800.79 feet of the Northwest 1/4 of the Northweat t/4 of Sectl�
30, Township 40 South, Ronge 43 East, Palm Beach County, Flarlda, safd parcel more particularly described as follows
COMMENCING at the Southeast comer of eaid Northwest 1/4 of the Northwest 1/4 of Section 30, proceed North 89'
57' 03 Weat along the South line of said Northwest 1/4 of the Northwest 1/4 a distance of 230.56 feet; thence
deporting last satd Iine, North 00' 02' 57 East a dlatance of 41256 feet; thence South 09' 32' 14 West a distance
of 4.24 feet to the POINT OF BEGINNING; thance North 35' 27' 46 West a diatance of 31.00 feet; thence North 54'
32� 14 East a distance of 18.00 feet; thence South 35' 27' 46 East a dietance of 31.00 feet; thence South 54' 32'
14" W�t a diatance of 18.00 feet to the POINT OF BEGINNING.
LESS AND DCCEPT THE FOLLOWING DESCRIBED PARCEL:
A parcei of land being a portlon of the South 600.79 feet of the Northwest 1/4 af the Northwast 1/4 of Section 30,
Townahip 40 South, Range 43 Eaet, Palm Beach County, Florida, eaid parcel more particularly described ae followa:
COMMENCING at tha Southeaet comer of eafd Northweat 1/4 of the Northwest 1/4 of Sectlon 30, proceed North 89'
87' 03" Weat along the South Iine of sald Northwest 1/4 of the Northwest 1/4 a dtstance of 230.56 feet; thence
departing last said Ilne, North 00' 02' 87 East a diatance of 412.56 feet to the POINT OF BEGINNING; thence
North 35' 27' 46 Weat a distance of 25.00 feet; thence North 54' 32' 14 East a dietance of 12.00 feet; thence
South 35' 27' 46" East a dietance of 25.00 feat; thence South 54' 32' 14 Weat a distance of 12.00 feet to
the POINT OF BEGINNING.
Sald 3.00 foot wlde strtp contalning a net area of 258 equare feet.
6
DESCRIP110N OF VERIZON WIRELESS STOOP EASEMENT
A parcel of land being a portion of the South 600.79 feet of the Northwest 1/4 of the Northwest 1/4 of Sactlon 30,
Townehfp 40 South, Range 43 Eaet, Palm Beach County, Florlda, said parcel mora particularly described as follows:
COMMENCING at the Southeast comer of eaid Northwest 1/4 of the Northwest 1/4 of Section 30, proceed North 89'
57' 03" Weat along the South Ilne of satd Northweat 1/4 of the Northwest 1/4 a distance of 230.56 feet; thence
departing laet satd Iine, North 00' 02' 57" Eaet a dletance of 412.58 feet; thence North 54' 32' 14 East a diatance
of 12.00 feet; thence North 35' 27' 48 West a dietance of 19.49 feet to the POINT OF BEGINNING; thence continue
North 35' 27' 46 West a dtstance of 4.00 feet; thence North 54' 32' 14 East a diat�ce of 3.75 feet; thenca
South 35' 27' 46 East a diatance of 4.00 feet; thence South 54' 32' 14� West a dfatance of 3.75 feet to
the POINT OF BEGINIdING.
Containfng an area of 15 square teet
DESCRIPTION OF VERIZON WIRELESS 3' ICE BRIDGE EASEMENT
A 3.00 toot Ride strip of Imid being a pwtion of the South 800.79 feet oi the Northweat 1/4 oi the Northweat 1/4 of Sectlon
30. Township 40 South, Ranga 43 East, Palm Beaeh County, Florida, the siddines of said strip lying 1.50 feet on each
side of the following deacHbed canterlMe:
COMMENCING at the Southeast comer of eaid Northwest 1/4 oi the Northwest 1/4 of S�tlon 30, proceed North 89'
57' 03 West along the South Ifne of said Northwest 1/4 of the Northwest 1/4 a dtat�oe of 230.56 feet; thence
d�arting laet safd Ilne, North 00' 02' 57 East a distance of 41256 feet; thence North 54' 32' 14 East a dlatance
of 12.00 feet; thence North 35' 27' 46 W�t a diatonce oi 5.51 feet to the POINT OF BEGINNING of the herein
described centerilne; thence North 56' 10' 32" East a dtstance of 4.81 feet to the POINT OF TERMINAl10N of the
herefn d�cdibed centerlfne.
The sidelines of said atrip to be extended or trimmed, as nec�sary, to torm one cont(guous ehape �d to meet a be�tng
Of North 35' 27� 46 Weet at tFle POfr1t of Beginning.
Containtng an area of 14.4 equare feet, more or lese.
In addition to the above, Lessee shall have non-exclusive access and utility rights across the
Properiy as necessary to connect the Premises to the nearest public right of way.
Tower Space: Space at the 105' level on the Tower
7
EXHIBIT B
(Site Sketch)
(See attached)
8
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