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Agenda 02/25/2014 Item #16E 92/25/2014 16.E.9. EXECUTIVE SUMMARY Recommendation to approve a License Agreement with Summit Broadband, Inc. for use of a portion of County -owned property in order to install equipment necessary to provide cable and internet service to the residents of Pelican Bay. OBJECTIVE: The Pelican Bay Foundation has requested that the Board of County Commissioners of Collier County, Florida, as the Governing Body of Collier County and as Ex- Officio the Governing Board of the Collier County Water -Sewer District (County), provide a portion of land to Summit Broadband, Inc., a TV cable and internet service carrier, in order to install its equipment to provide service to the residents of Pelican Bay. CONSIDERATIONS: The License Agreement (Agreement) provides Summit Broadband, Inc. (Summit) use of a twenty foot by thirty foot portion of vacant land (Area) in addition to an access easement (Access) at the County -owned property located at 6652 Watergate Way, which is to the east of Pelican Bay Boulevard and south of Gulf Park Drive. The term of the Agreement will be ten years, with a first year's rent of $4,200. The rent shall be increased annually by 3.5 %. Either party is granted the option to terminate the Agreement by providing the other party with ninety day written notice. The County will be required to review all of Summit's proposed plans for the construction and installation of all improvements on the Area. The maintenance and cost of utilities for the Area are to be the sole responsibility of Summit. In addition to the annual rent, and at no cost to the County, Summit agrees to provide connections to all of the County's Water -Sewer District's monitoring equipment such as, but not limited to, lift stations, pump stations and IQ meters within the geographic boundary of Pelican Bay. Summit also agrees to provide connections, at no cost to the County, to other communities served by the County that Summit may serve currently and in the future. ' The Risk Management Department has reviewed the insurance provisions contained in the Agreement and deemed them to be satisfactory. FISCAL IMPACT: The first year's annual rent of $4,200 and all following annual rents shall be recorded in the Collier County Water -Sewer District Operating Fund (408). GROWTH MANAGEMENT IMPACT: There is no impact to the Growth Management Plan. LEGAL CONSIDERATION: This item has been reviewed by the County Attorney's Office, is approved as to form and legality, and requires majority vote for approval. — JAB RECOMMENDATION: That the Board approves and authorizes the Chairman to execute the attached License Agreement with Summit Broadband, Inc. PREPARED BY: Michael Dowling, Sr. Property Management Specialist, Real Property Management, Facilities Management Department Packet Page -1409- 2/25/2014 16.E.9. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.E.16.E.9. Item Summary: Recommendation to approve a License Agreement with Summit Broadband, Inc. for use of a portion of County -owned property in order to install equipment necessary to provide cable and internet service to the residents of Pelican Bay. Meeting Date: 2/25/2014 Prepared By Name: DowlingMichael Title: Property Management Specialist, Senior, Facilities Management 2/3/2014 5:52:32 PM Approved By Name: Joseph Bellone Title: Director - Operations Support, Utilities Finance Operations Date: 2/7/2014 4:05:42 PM Name: MottToni Title: Manager - Property Acquisition & Const M, Facilities Management Date: 2/9/2014 2:26:14 PM Name: CampSkip Title: Director - Facilities Management, Facilities Management Date: 2/10/2014 11:04:26 AM Name: pochopinpat Title: Administrative Assistant, Administrative Services Division Date: 2/10/2014 11:25:57 AM Name: BelpedioJennifer Title: Assistant County Attorney, CAO General Services Date: 2/11/2014 2:24:46 PM Name: PriceLen Title: Administrator - Administrative Services, Administrative Services Division Packet Page -1410- Date: 2/12/2014 5:23:55 PM Name: KlatzkowJeff Title: County Attorney, Date: 2/13/2014 10:35:16 AM 2/25/2014 16.E.9. Name: PryorCheryl Title: Management/Budget Analyst, Senior, Office of Management & Budget Date: 2/13/2014 3:44:57 PM Name: OchsLeo Title: County Manager, County Managers Office Date: 2/17/2014 10:59:05 AM Packet Page -1411- 2/2512014 16.E.9. License Agreement THIS LICENSE AGREEMENT ( "License "), is entered into .effectively on the day of 2014, the ( "Commencement Date "), by and between the two parties: BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS THE GOVERNING BODY OF COLLIER COUNTY AND AS EX- OFFICIO THE GOVERNING BOARD OF THE COLLIER COUNTY WATER -SEWER DISTRICT, ( "LICENSOR ") and SUMMIT BROADBAND INC., (hereinafter "LICENSEE"), The parties agree as follows: ARTICLE 1. The Property 1.01 PARCEL OF LAND: 'LICENSOR owns a parcel of land at the following street address: 6652 Watergate Way, Naples, FL 34108, herein called ( "LICENSOR's Land "). LICENSEE is in the communications business and desires to utilize land and be granted an access easement thereto, referred to herein collectively as the "LICENSED AREA ", which is shown on attached Exhibit A. All personal property brought onto the LICENSED AREA by or on behalf of LICENSEE is referred to herein as "LICENSEE'S Property ". Any personal property brought onto the LICENSED AREA by LICENSOR or on behalf of LICENSOR is referred to herein as " LICENSOR'S Property ". LICENSEE accepts the LICENSED AREA `as is' without LICENSOR providing any improvements to or on the LICENSED AREA. LICENSEE shall also be required to construct a fence around the LICENSED AREA as well as appropriate landscaping as directed by LICENSER'S representative. LICENSEE is granted the right to install and operate an auxiliary generator in order to operate its equipment during times of power outages at the LICENSED AREA. LICENSOR agrees for LICENSEE to only use a diesel generator and not gas - powered due to the nature of LESSOR'S operations at the LICENSOR'S PROPERTY. 1.02 PURPOSE OF AGREEMENT: LICENSOR hereby Licenses the LICENSED AREA to LICENSEE. This License is not a Franchise under any law, rule, or regulation. The LICENSED AREA for the purposes of this Agreement shall be defined as a parcel of land measuring approximately 20 feet by 30 feet equaling approximately 603 square feet plus an access easement thereto and an underground easement from the public road and /or adjacent property owner's property to the LICENSED AREA. If any easement documents require recordation in the Public Records of Collier County, LICENSEE shall pay all costs associated with the recordation of same. 1.03 SURVEY. LICENSOR and LICENSEE hereby agree that the LICENSED AREA has been be surveyed by a licensed surveyor at LICENSEE'S costs and is attached in Exhibit A. ARTICLE 2. Access Easement 2.01 LICENSOR hereby grants to LICENSEE a non - exclusive access easement (during the entire life of this License) for free access to the LICENSED AREA seven (7) days a week, twenty -four (24) hours a day to maintain and repair LICENSEE'S PROPERTY. LICENSOR shall grant LICENSEE'S employees, contractors, and invitees, with a mode of access for entry to the LICENSED AREA, and LICENSEE shall bear the cost of any security background check that may be required at LICENSOR'S PROPERTY. Packet Page -1412- 2/25/2014 16.E.9. ARTICLE 3. License Term and Rent 3.01 RENT PAYABLE IN MONEY: This License has an initial term of ten (10) years from the Commencement Date written above on this License. The annual rent for this License shall be Four Thousand Two Hundred Dollars ($4,200) payable in full within fifteen days from the start date of this License and shall be due each year thereafter on the anniversary date of this License. All rental payments shall be made to the LICENSOR in care of Real Property Management at the address specified below in Section 11 of this License. Any amounts not paid promptly when due shall also accrue interest of (2 %) per month or the highest interest rate then allowed by law, which interest shall be paid by LICENSEE to LICENSOR. 3.02 In addition to the annual rent for the LICENSED AREA as stated above, LICENSEE shall provide fiber optic connections, at no cost to the LICENSOR, to all Collier County Water- Sewer District (CCWSD) monitoring equipment, such as, but not limited to, lift stations, pump stations and IQ meters, within the geographical boundaries of the area known as Pelican Bay, as well as to any other communities where LICENSEE provides fiber optic service to such as, but not limited to, Barefoot Beach, Bridgewater Bay and the Vineyards and to any future communities within the CCWSD. 3.03 The LICENSEE and the LICENSOR shall be granted the right to terminate this License at any time, with or without cause, during any period of this License, by providing the other party with a ninety day written notice of its intention to terminate (a "Termination Notice ") at the addresses set forth in this License. 3.04 RENT INCREASES: After the first full year of occupancy, the annual rent shall be increased by 3.5% compounded annually (for example: second year: $4,347; third year: $4,499.15; fourth year: $4,656.62, fifth year: $4,819.60). ARTICLE 4. Use of the Licensed Area 4.01 LICENSED AREA: LICENSEE shall use the LICENSED AREA to construct, remove, replace, maintain, secure and operate its communications facilities, consisting of equipment needed to operate a Hub Site. Subject to other provisions regarding approvals and technical specification related thereto, the Hub Site facilities may from time -to -time be modified, added to, or substituted. Each structure may be configured as requested by LICENSEE from time -to -time, provided LICENSEE, at is sole expense, obtains all permits and approvals required by all applicable jurisdictions, including LICENSOR, for each configuration. The LICENSEE shall be restricted to the height limitations established zoning as well as covenants and restrictions for the LICENSED AREA and shall adhere to those height restrictions, as well as to LICENSOR'S request of any proposed changes to the Hub Site, in which those reasonably requested changes by LICENSOR shall be at the expense of LICENSEE. All modifications, additions or alterations to the Hub Site shall be reviewed and approved by LICENSOR as provided in paragraph 4.20 below. Packet Page - 1413 - S 2/25/2014 16.E.9. 4.02 PLANS REVIEW BY LICENSOR: LICENSOR shall have the right to review and approve plans for any and all improvements installed within the LICENSED AREA, which approval shall not be unreasonably withheld or unreasonably delayed. Prior to commencing any construction, LICENSEE shall submit a copy of plans and specification for all improvements to LICENSOR for review and approval. No improvements, construction, installation or alteration shall be commenced until plans for such have been approved by LICENSOR's representative and permits have been issued to authorize such construction. LICENSOR's representative shall respond to LICENSEE'S proposed improvements within forty - five days from receipt of the request. All requests and replies shall be forwarded to the addresses set forth in this License. All improvements shall be constructed in a workmanlike manner and shall be completed in compliance with all applicable laws, rules, ordinances and regulations. Improvements to or within the LICENSED AREA (and within the easement access area) shall be at no expense to LICENSOR. LICENSEE shall maintain all of its improvements in a reasonable condition throughout the life of this License to the reasonable satisfaction of LICENSOR. LICENSEE shall allow LICENSOR free access to LICENSOR'S PROPERTY within the LICENSED AREA at all reasonable times that LICENSOR desires such access. 4.03 MAINTENANCE, REPAIR AND REPLACEMENT OF PROPERTY: LICENSEE shall maintain,. repair, and replace the Hub Site, all of its equipment and all other of LICENSEE'S Property to the highest quality construction, repair and maintenance standards during the entire life of this License. LICENSOR shall maintain, repair, and replace LICENSOR'S equipment in order to protect the integrity of the Hub Site. LICENSOR agrees that any maintenance, repair and/or replacement performed on the LICENSER'S Property shall be done in a workmanlike manner consistent with LICENSOR'S high quality construction standards. Any maintenance, repair, or replacement work performed on LICENSOR'S Property shall not interrupt or interfere with the operation of LICENSEE'S Hub Site or LICENSEE'S Equipment unless LICENSEE specifically agrees, in writing, to such interruption or interference. LICENSOR shall have the option to comment on such plans, specifications, and provide comments prior to the commencement of any maintenance, repair, or replacement work, and if LICENSOR shall require revisions to LICENSEE'S proposed plans and /or specifications for any maintenance, repair or replacement, work, LICENSEE agrees to make those reasonable changes at LICENSEE'S sole cost and expense. LICENSEE shall not be required to obtain LICENSOR's prior review or approval for general maintenance work such as, but not Iimited to, repairing, maintaining, or replacing any of its equipment within the structure as seen in Exhibit A. LICENSOR shall provide LICENSEE with at least forty - eight (48) hours' notice prior to any maintenance, repair or replacement work that will require access to the Hub Site or LICENSED AREA, unless an emergency exists in which case notice shall be provided to LICENSEE not later than twenty -four (24) hours after access to the Hub Site or LICENSED AREA has occurred. LICENSEE shall have the right to have a representative present during any non- emergency maintenance, repair, or replacement by LICENSOR that will require access to the Hub Site or to the LICENSED AREA. Packet Page -1414- a 2/25/2014 16.E.9. 4.04 BARE LICENSE TO PARK VEHICLES: If there is insufficient space to park LICENSEE'S vehicles within the LICENSED AREA, LICENSOR hereby grants to LICENSEE a maximum of three parking spaces, subject to availability of space for same, a bare license with no interest coupled thereto to park its respective motor vehicles on LICENSOR'S PROPERTY for short periods of time while LICENSEE'S is constructing, removing, replacing and/or servicing the Hub Site and/or its communications facilitates within the LICENSED AREA. If any damage is caused by LICENSEE or its employees, contractors, or invitees to LICENSOR'S PROPERTY or to LICENSOR's equipment which surrounds the LICENSED AREA, LICENSEE shall bear the sole cost for any repairs and /or replacement to LICENSOR'S damaged property and/or equipment. ARTICLE 5. Ownership of Property 5.01 DURING THE LIFE OF THIS LICENSE: The Hub Site Equipment shall remain the property of LICENSEE during the life of this License and after termination of this License. Any other property brought onto the LICENSED AREA by or on behalf of the LICENSEE shall remain the property of LICENSEE during the life of this License and after termination of this License. All property brought upon the LICENSFD AREA by LICENSOR shall remain the property of LICENSOR during the life of this License ark"' after the termination of this License. 5.02 AT EXPIRATION OR TERMINATION OF LICENSE: Upon expiration or termination of this Agreement, LICENSEE shall, at no cost to LICENSOR, remove the Hub Site Equipment and all of its other property from the LICENSED AREA. ARTICLE 6. Early Termination of this License by LICENSEE If any of the following events (6.01 through 6.05) occur, LICENSEE has the right to immediately terminate this License by giving written notice to LICENSOR of such termination before three hundred and sixty -five (365) days of the Commencement Date. 6.01 LICENSEE determines, in its sole discretion, that it will be unable to obtain all necessary Governmental Approvals for LICENSEE'S intended use of and improvements to the LICENSED AREA as desired by LICENSEE: or 6.02 LICENSEE'S application for any Governmental Approvals necessary for LICENSEE'S use of the LICENSED AREA and/or LICENSEE's Property and improvements desired by LICENSEE is denied; or 6.03 Any Governmental Approvals necessary for LICENSEE'S use of the LICENSED AREA and /or improvements to the LICENSED AREA, whether now or hereafter desired by LICENSEE, have been cancelled, have expired, have lapsed or have otherwise been withdrawn, terminated or denied to that LICENSEE, in its reasonable judgment, determines that it will no longer be able to use the LICENSED AREA for LICENSEE'S intended uses; or Packet Page -1415- ,�3 2/25/2014 16.E.9. 6.04 If LICENSEE deternunes that the LICENSED AREA has become unsuitable for LICENSEE'S operations due to changes in system design or network design or in the types of equipment used in such operations, or LICENSEE'S operations at the Property become unprofitable. ARTICLE 7 Assignment and Subletting 7.01 ASSIGNMENT: Except to a "Partner Company ", "Affiliate ", or "Subsidiary ", LICENSEE shall not assign this License, or allow it to be assigned, in whole or in part, by operation of law or otherwise. LICENSEE shall not mortgage or pledge this License or any of LICENSEE'S property, or any part thereof, nor sublet any part of the Hub Site or other of LICENSEE'S Property without the prior written consent of LICENSOR. Any assignment or other transfer not authorized by LICENSOR, in writing, shall be void ab initio. 7.02 LICENSEE OBLIGATIONS: No consent by LICENSOR to any assignment, License, sublease /sublicense, or any other transfer by LICENSEE shall relieve LICENSEE of any obligation to be performed by LICENSEE under this License, whether arising before or after the assignment, sublease /sublicense, or other transfer. The consent by LICENSOR to any assignment, sublease /sublicense, or other transfer, shall not relieve LICENSEE from the obligation to obtain LICENSOR'S express written consent to any other or subsequent assignment(s), subleases) /sublicense(s) or other transfer(s). 7.03 SALE OR TRANSFER: Any sale or other transfer, including by consolidation, merger, or reorganization by sale or transfer of a majority of the then outstanding voting stock of LICENSEE or any sale or other transfer of a majority interest (whether of profits, losses, capital, or voting power) shall not be an assignment for purposes of this Section 7. ARTICLE 8. Utilities 8.01 LICENSEE shall be directly responsible to all serving entities for all utility services used at the LICENSED AREA. LICENSOR agrees to cooperate with LICENSEE in its efforts to obtain utilities from any location provided by the LICENSOR or by any other servicing utility, but at no cost to LICENSOR. ARTICLE 9 Indemnification Insurance. Assumption of Risk 9.01 INDEMNIFICATION: LICENSEE hereby agrees to indemnify and hold LICENSOR harmless from and against any and all claims of liability for personal injury or property damage to the extent that they result from or arise out of: (1) the acts or omissions of LICENSEE, its agents and employees in, on or about the LICENSED AREA and /or the easement access area, excepting however such claims or damages as may be due to or caused solely by the acts or omissions of LICENSOR, its employees or agents; and/or (2) LICENSEE'S breach of any term or condition of this License on LICENSEE'S part to be observed or performed. To the extent then allowed by Section 768.28, Florida Statutes, LICENSOR hereby agrees to indemnify and hold LICENSEE harmless from and against any and all claims of liability for personal injury or property damage to the extent that they result from or arise directly out of: (1) the acts or omissions of LICENSOR, its agents and employees in, on or about the LICENSED Packet Page - 1416 - n`�� 2/25/2014 16.E.9. AREA and/or access easement area, excepting, however, such claims or damages as may be due to or caused solely by the acts of LICENSEE, its employees or agents, and/or (3) LICENSOR's breach of any term or condition of this License on LICENSOR'S part to be observed or performed. 9.02 INSURANCE: LICENSEE will provide LICENSOR with a certificate of insurance, issued by an insurance company licensed to do business in the State of Florida proving that LICENSEE then carries comprehensive general liability insurance with limits of liability thereunder of not less than One Million Dollars ($1,000,000.00) combined singled limit for bodily injury and/or property damage together with an endorsement for contractual liability. Such insurance shall name LICENSOR as an additional insured with respect to the LICENSED AREA with respect to LICENSEE'S Property. LICENSEE will provide LICENSOR with a renewal certificate within ten (10) business days of LICENSOR'S request for such certificate. Any insurance required to be provided by LICENSEE under this Paragraph may be provided by blanket insurance policy covering the LICENSED AREA and LICENSEE'S Property and other locations of LICENSEE, provided such blanket insurance policy complies with all of the other requirements of this License with respect to the type and amount of insurance required. LICENSOR cannot be certain that the specific insurance requirements specified in this License will be adequate with the passage of time; therefore, LICENSOR reserves the right to reasonably amend the insurance requirements by issuance of Notice in writing to LICENSEE, whereupon receipt of that Notice LICENSEE shall have sixty (60) days in which to obtain the required additional insurance, unless, for good cause, LICENSOR requires that such insurance be acquired in less than sixty (60) days. LICENSOR shall provide LICENSEE with a certificate of insurance, issued by an insurance company licensed to do business in Florida indicating that LICENSOR carries comprehensive general liability insurance with limits of liability thereunder of not less than One Million Dollars ($1,000,000.00) combined single limit for bodily injury and/or property damage, together with an endorsement for contractual liability. LICENSOR will provide LICENSEE with a renewal certificate within ten (10) business days of LICENSEE'S request for such certificate. 9.03 WAIVER OF SUBROGATION: Each such policy described in the paragraph above, shall be written so as to provide that the insurance company waives all rights of recovery by way of subrogation it may have against LICENSOR or LICENSEE in connection with any loss and /or damage covered by such policy. The LICENSOR and LICENSEE agree and hereby release each other with respect to any claim (including a claim for negligence) which the other party may have against such party for loss, damage or destruction of, or liability for damages to, the LICENSED AREA and/or LICENSEE'S property occurring during the term of this License, as same may be extended, and normally covered under a fire insurance policy with extended coverage. Notwithstanding anything contained in this License to the contrary, the provisions of this Paragraph shall control. 9.04 ASSUMPTION OF RISK BY LICENSEE: LICENSEE accepts the LICENSED AREA "as is ". LICENSEE, for its officers, agents, affiliates, contractors, materialmen, suppliers, laborers, and employees hereby undertakes and assumes all risk of dangerous conditions, if any, on the LICENSED AREA and on the access easement area, and hereby agrees to indemnify and hold harmless LICENSOR and all users against and from any claim asserted or Packet Page -1417- d� n 2/25/2014 16.E.9. liability imposed upon LICENSOR or any User for personal injury or property damage to any person (other than from LICENSOE'S gross negligence) arising out of the LICENSEE'S installation, operation, maintenance, condition or use of the LICENSED AREA and /or the access easement area, or LICENSEE'S failure to comply with any federal, state, or local law, ordinance, rule or regulation. ARTICLE 10. LICENSEE Defaults 10.01 EVENT OF DEFAULT: The occurrence of any one or more of the following events shall constitute an "Event of Default" of this License by LICENSEE: a) The failure by LICENSEE to make any payment of rent as and when due. b) The failure by LICENSEE to observe or perform any of the covenants or provisions of this License to be observed or performed by LICENSEE, where such failure shall continue for a period of thirty (30) days after written notice thereof is received by LICENSEE from LICENSOR; provided, however, that it shall not be deemed an Event of Default by LICENSEE if LICENSEE shall commence to cure such failure within said thirty (30) day period and thereafter diligently prosecutes such cure to full completion. c) If LICENSEE abandons or vacates the LICENSED AREA after a period of sixty days. d) To the extent allowed by law, if LICENSEE is adjudicated bankrupt or makes any assignment for the benefit of creditors or if LICENSEE becomes insolvent. 10.02 TERMINATION OF LICENSE BY LICENSOR: If there occurs an Event of Default by LICENSEE, in addition to any other remedies available to LICENSOR at law or in equity, LICENSOR may elect to terminate this License and all rights of LICENSEE hereunder. 10.03 LICENSOR'S REMEDIES: In the event of a material default of this License by LICENSEE, LICENSOR shall have the right, at its option; in addition to and not exclusive of any other remedy LICENSOR may have by this License or by operation of law, without any further demand or notice, to either (a) declare this License at an end. If ordered by LICENSOR, LICENSEE shall immediately remove the Hub Site Equipment and LICENSEE'S PROPERTY as specified by LICENSOR, and LICENSEE shall then pay to LICENSOR a sum of money equal to the total of (1) the amount of unpaid rent, if any, then accrued through the date of termination; (2) the amount by which the unpaid rent reserved for the balance of the terns; and (3) any other amount necessary to compensate LICENSOR for all detriment proximately caused by LICENSEE's failure to perform its obligations under the License. Packet Page -1418- `j� -- 2/25/2014 16.E.9. ARTICLE 11. Notices 11.01 Notices: All notices hereunder shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail to the following addresses, or at such other address as the receiving party shall designate in writing: To the LICENSEE: Summit Broadband, Inc. 24017 Production Circle Bonita Springs, Florida 34108 Attention: Frank Mambuca To the LICENSOR: Public Utilities Administrator 3339 Tamiami Trail East, Suite 302 Naples, Florida 34112 cc: Real Property Management, Leasing Agent 3335 East Tamiami Trail, Suite 101 Naples, Florida 34112 ARTICLE 12. Sale or Transfer of the Licensed Area by LICENSOR 12.01 The LICENSED AREA is within a wastewater treatment plant site. LICENSOR has no plans to sell or oth- -rwise convey away any part of or any interest in any part of the LICENSED AREA to LICENSEE or any other person or entity. Should LICENSOR, at any time during the life of this License, sell, License, transfer or otherwise convey all or any part of the LICENSED AREA, to any transferee other than LICENSEE, then such transfer shall be under and, during the entire term of this License, shall be subject to this License and all of LICENSEE's rights hereunder. ARTICLE 13. Hazardous Substances 13.01 HAZARDOUS SUBSTANCES ON PROPERTY. LICENSOR has no knowledge that LICENSOR nor any other person or entity has used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of any Hazardous Material on, under, about or within any part of LICENSOR'S Property in violation of any law or regulation. LICENSOR and LICENSEE each agrees that it will not use, generate, store, or dispose of any Hazardous Material (as defined in Paragraph 13.02, below) on, under, about or within LICENSOR_'S Property in violation of any applicable law or regulation. LICENSOR and LICENSEE each agrees to defend and indemnify the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and /or costs (including reasonable attorneys' fees and costs) arising from any breach of any warranty or agreement. As used in Paragraph 13.01., "Hazardous Material" shall mean any substance, chemical or waste identified as hazardous, toxic, or dangerous in any applicable federal, state or local law or regulation (including petroleum and asbestos). Packet Page -1419- _ � 2/25/2014 16.E.9. ARTICLE 14. Condemnation 14.01 Whole Condemnation. Because LICENSOR is a governmental entity and few condemners have authority to condemn the LICENSED AREA, it is unlikely that the LICENSED AREA will ever be condemned. If the LICENSED AREA, including without limitation any of LICENSEE'S Property, shall be taken or condemned, either temporarily or permanently, for public purposes, or sold to a condemning authority under threat of condemnation to prevent taking, then this License shall automatically terminate as of the date of the taking, condemnation, or sale. 14.02 Partial Condemnation. If any portion of the LICENSED AREA shall be taken or condemned, either temporarily or permanently, for public purposes, or sold to a convening authority under threat of such condemnation to prevent taking, then LICENSOR agrees that LICENSEE may use and /or construct upon an alternative portion of LICENSER'S Property that is suitable for LICENSEE'S purposes, provided such suitable space is available. The exact site to which LICENSEE may relocate will be determined by LICENSOR, and it may be any portion of LICENSOR' S Property (or other property owned or controlled by LICENSOR), provided LICENSEE approves the new site as being suitable to LICENSEE'S intended use. LICENSOR will designate a site to which LICENSEE may relocate prior to the taking, condemnation or sale. In the event no alternative portion of the LICENSOE'S Property is suitable for LICENSEE's purposes, then this License shall forthwith automatically terminate as of the date of the taking, condemnation, or sale. 14.03 Condemnation Award. LICENSOR shall receive the entire condemnation award for the land and all other improvements as were paid by LICENSOR. LICENSEE hereby expressly assigns to LICENSOR any and all rights, title, and interests of LICENSEE now or hereafter arising in and to any such award. LICENSEE shall have the right to recover from the condemnor, but not from LICENSOR, any compensation as may be awarded to LICENSEE on account of the taking of its Leasehold interest, moving and relocation expenses, and depreciation to and removal of personal property and fixtures of LICENSEE from the LICENSED AREA, ARTICLE 15. Liens 15.01 LICENSEE shall keep LICENSED AREA free from any liens arising out of any wort: performed, materials furnished.. or obligations incurred by or on behalf of LICENSEE. LICENSEE shall, within twenty (20) days following the imposition of any such lien, cause the same to be released of record either by payment thereof or by posting of a proper bond in accordance with Section 713.24, Florida Statutes. No work which LICENSEE performs or has performed within the LICENSED AREA shall be deemed to be for the use and benefit of LICENSEE so that no mechanics or other lien shall be allowed against the estate of LICENSOR by reason of LICENSOR's consent to any such work. LICENSEE and/or LICENSOR may, at is election, post notices in the LICENSED AREA advising that LICENSOR is not responsible for payment for any such work. Packet Page -1420- 2/25/2014 16.E.9. ARTICLE 16. Fire and Other Casualty Damage 16.01 If the Hub Site Equipment and /or related facilities is /are totally or substantially destroyed by an act or occurrence beyond the control of LICENSEE, LICENSEE may terminate this License effective on the date of such occurrence, or LICENSEE may elect to rebuild and or replace the Hub Site Equipment. If LICENSEE elects to terminate this License under this provision, any unearned rent for the remainder of that License year shall be refunded by LICENSOR to LICENSEE provided LICENSEE has not otherwise breached this License to the monetary detriment of LICENSOR or to any user. ARTICLE 17. Taxes 17.01 NET -NET LICENSE. This is a net -net License as to LICENSOR. LICENSEE shall be liable for and shall pay to the applicable taxing authority if billed directly to LICENSEE, or to LICENSOR if billed to LICENSOR, upon thirty (30) days prior written notice from LICENSOR, any and all taxes and assessments levied against any personal property or trade or other fixtures placed by LICENSEE in or about the LICENSED AREA. 17.02 PROPERTY TAXES. LICENSOR'S Property is not now subject to any real property taxes. Nevertheless, LICENSEE shall pay (as additional rent) real property taxes, if any, that may be levied against the LICENSED AREA and/or against LICENSOR'S Property as a result of this License and /or any improvements constructed on the LICENSED AREA by LICENSEE and/or any licenses other than LICENSOR. LICENSEE shall not be responsible for any increases in real property taxes which are a result of tax assessment of LICENSOR'S Property due to improvements made by LICENSOR or any third parties acting under LICENSOR. 17.03 TAX ALTERATIONS. If hereafter laws of taxation are altered so that if any new tax, any payment "in lieu of or "as a substitute for" all or any portion of any taxes and /or special assessments are imposed on any of the tangible and/or intangible property, such obligations shall be assumed and be paid by LICENSEE except any such payments directly attributable to communications equipment installed on the site by LICENSOR or through LICENSOR. This assumption shall not preclude LICENSEE from contesting any and all such obligations. ARTICLE 18. Quiet Enjoyment and Non - Interference 18.01 LICENSOR warrants and agrees that LICENSEE, upon paying the rent and performing all covenants herein provided, shall peaceably and quietly have and enjoy the LICENSED AREA. LICENSOR warrants and agrees that LICENSOR is seized of good and sufficient title to and interest in the LICENSED AREA and has full authority to enter into and execute this License and that LICENSOR knows of no liens, judgments or impediments of title on the LICENSED AREA that would affect this License. Packet Page -1421- 2/25/2014 16. E.9. ARTICLE 19. Miscellaneous 19.01 ATTORNEYS' FEES. If either party institutes any action or proceeding in court to enforce any provision hereof, such as an action for damages for any alleged breach of any provision hereof, then the prevailing party in such action or proceeding shall be entitled to receive from the non- prevailing party such amount as the court may adjudge to be reasonable attorneys' fees for the services rendered to the prevailing party, together with its other reasonable litigation expenses. 19.02 FAILURE TO CURE CURABLE BREACH. If either party breaches this License in any manner and fails to commence to cure such breach within thirty (30) days after receiving a written notice from the other party exactly specifying the violation (or if the breaching party fails thereafter to diligently prosecute the cure to completion), then the non - breaching party may enforce each of its rights and remedies under this License or provided by law or it may (although it shall not be obligated to do so) cure that breach or perform the breaching party's obligations (on the breaching party's behalf and at the breaching party's expense) and require the breaching party to reimburse all reasonable expenses incurred in doing so, plus interest (from the date such expenses are incurred until reimbursement) at twelve percent (12 %) per annum. 19.03 SEVERABILITY. If any portion of this License, is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portions shall be deemed modified to the extent necessary in such court's option to render such portion enforceable and, as so modified, such portion and the balance of this License shall continue in full force and effect. 19.04 INJUNCTION AND EQUITABLE RELIEF. In addition to all other remedies provided for in this License, LICENSOR and LICENSEE shall be entitled to immediate restraint by injunction (or any other appropriate equitable remedy) of any violation of any of the covenants, conditions or provisions of this License. 19.05 CAPTIONS. The captions of the paragraphs used in this License are for convenience of reference only and shall not affect the interpretation of this License. 19.06 GOVERNMENT APPROVALS BY LICENSEE. LICENSOR acknowledges that LICENSEE'S ability to use the LICENSED AREA and LICENSEE's Property for its intended purpose is contingent upon LICENSEE obtaining and maintaining, both before and after the Commencement Date, all certificates, permits, licenses and other approvals that may be required by any federal, state and/or local authority including LICENSOR, for the foregoing uses and improvements to the LICENSED AREA described in this LICENSE. LICENSOR agrees to cooperate with LICENSEE in LICENSEE'S efforts to obtain such governmental approvals and LICENSOR shall take no action that would adversely affect LICENSEE'S obtaining or maintaining such governmental approvals. Signatures appear on the following page. Packet Page -1422- 2/25/2014 16.E.9. IN NA71TNESS WHEREOF, LICENSOR and LICENSEE have duty executed this License Agreement as of the day and year first above written. AS TO LICENSEE: Date: STATE OF FLORIDA: City /County of SUMMIT BROADBAND INC. Frank Mambuca On _ 2014, before me, a Notary Public, personally appeared personally known to me or proven to me or proven to me on the basis of satisfactory evidence to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same, and that by his/her signature on the instrument the person, or the entity upon whose behalf the person acted, executed the instrument. Witness my hand and official seal. NOTARY PUBLIC My Commission Expires: AS TO THE LICENSOR: DATE: AT"T"EST: DWIGHT E. BROCK, Clerk l , Deputy Clerk Approved as to form and legality: BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS THE GOVERNING BODY OF COLLIER COUNTY AND AS EX- OFFICIO THE GOVERNING BOARD OF THE COLLIER COUNTY WATER -SEWER DISTRICT M. TOM HENNING, Chairman Jennifer A. Belpedio, Assistant County Attorney _ �, �C 5 Packet Page - 1423 -��! Exhibit A (1 of 3) N56'44'41'E 2/25/2014 16.E.9. Y P,B.I,D. UTILITY SITE 561.40'41' W `Q� o ' °°° CLUB @ PELICAN BAY MAINT. AREA L3 N J NOT A SURVEY SHEET 1 OF 2 for: project: PELICAN BAY SUMMIT BROADBAND - UTILITY EASEMENT title: date: SKETCH AND DESCRIPTION OF UTILITY EASEMENT FEB. 3, 2014 mmmik scale: book: W W� GNOLI CeriAuthorization ete of Authorization Noe. LB 3884 and 8B 3884 1° =120' Page: Far: (239)588 -2203 ARBER & project view: n UNDAGE, nac. o.: 14 -0011 Professional engineers, planners, & land surveyors acod: file no: Collier County: Suite 200. 7400 Tamiami Trall, North; Naples. FL 34108 (239)597 -3111 11057 -SD 11057 Packet Page -1424- cov 556 °44'41'W 566.41 ^7 // \'P 8 e({ LINE TABLE L4 r $ QW LINE LENGTH BEARING L11 Ll 48.23(P) N 53'39'19' E j J a L2 94.98(P) S 36'20'41' E L_- Q Cd L3 72,04(P) S 53'39'19' W L6 1 L9 M 52'20 L4 525 N 60.20'12' E '� 1 L5 36.00 N 29'39'48' W 3 L6 51.00 S 60'20'12' W L7 53.50 N 17'36'53' EI ° LS 9.79 N 11'20'17' W °'i L9 5.00 S 60'20'12` W 41 L10 36.00 S 29'39'48' E � Z L11 50.75 N 60'20'12' E �1 cy co PARCEL 'M' P.1311). UTILITY SITE I (O., 1536, W 12.00 AC,± PGS. 1865 -1878) (O.R, 1393, PG. 1235) (O,R. 3755, PG. 2127) co ij PART OF PARCEL 'O' M1 0 a PELICAN BAY, UNIT TWO i iw o (PE. 12, PGS. 74 -79) 311 P,B.I,D. UTILITY SITE 561.40'41' W `Q� o ' °°° CLUB @ PELICAN BAY MAINT. AREA L3 N J NOT A SURVEY SHEET 1 OF 2 for: project: PELICAN BAY SUMMIT BROADBAND - UTILITY EASEMENT title: date: SKETCH AND DESCRIPTION OF UTILITY EASEMENT FEB. 3, 2014 mmmik scale: book: W W� GNOLI CeriAuthorization ete of Authorization Noe. LB 3884 and 8B 3884 1° =120' Page: Far: (239)588 -2203 ARBER & project view: n UNDAGE, nac. o.: 14 -0011 Professional engineers, planners, & land surveyors acod: file no: Collier County: Suite 200. 7400 Tamiami Trall, North; Naples. FL 34108 (239)597 -3111 11057 -SD 11057 Packet Page -1424- cov 2/25/2014 16.E.9. LEGAL DESCRIPTION OF A UTILITY EASEMENT PART OF PARCEL "O' PELICAN BAY UNIT TWO (P. B. 12, PAGES 74-79) COLLIER COUNTY, FLORIDA ALL THAT PART OF PARCEL'O ". PELICAN BAY UNIT TWO, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 12. PAGES 74.79, PUBLIC RECORDS OF COLLIER COUNTY. FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHERLY MOST CORNER OF PARCEL "O" PELICAN BAY UNIT TWO AS RECORDED IN PLAT BOOK 12 PAGES 74 THROUGH 79 PUBLIC RECORDS OF COLLIER ('O( NTY. FLORIDA, THENCE NORTH 56.4441" EAST ALONG THE SOUTS IERLY LINE OF SAID PARCEL "O" A DISTANCE OF 216.36 FEET TO THE POINT OF BEGINNING OF A 10.00 FELT WIDE UTILITY EASEMENT LYING 5.00 FEET ON EACH SIDE OF THE FOLLOWING CENTER LINE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THENCE LEAVING SAID SOUTHERLY LINE NORTH 11'30'39" WEST A DISTANCE OF 111.50 FELT TO POINT ".A" AND THE POINT OF TERMINUS OF THE CENTERLINE HEREIN DESCRIBED: AND BEGINNING ATTHE AFORESAID POINT -A" NORTH 60 ^20'I2" EAST A DISTANCE OF 5 23 FLr-T, THENCE NORTH 29'- 39'43" WEST A DISTANCE OF 36 00 FEET, THENCE SOUTH 60' 20'12" WEST A DISTANCE OF 51.00 FEET TO POINT "B ", n IENCE CONTMUING SOUTH Ur 20012" W ESI A DISTANCE OF 5 00 FEET. TI IENCE SOUTH 29, 39'48" EAST A DISTANCE OF 36,00 FEET, THENCE NORTH 6&'21Y 12" EAST A DISTANCE OF 50 75 PEEr TO POINT -A" AND THE POINT OF HEGINNING OF THL PARCEL HEREIN DESCRIBED. AND BEGINNING AT THE AFOREMENTIONED POINT "B" SAID POINT BEING THE BEGINNING OF A 10 00 FEFI' W t0E UTILITY EASEMENT LYING SAO FEET ON EACH SIDE OF THE FOLLOWING CENTERLINE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THENCE NORTH 29 "3448" WEST A DISTANCE OF 143.78 FEFI: THENCE NORTH 17 °36'53' EAST A DISTANCE OF 53.50 FEET: THENCE NORTH 28'43'29" WEST A DISTANCE OF 96,14 FEET; THENCE NORTH 27 "5S34" WEST A DISTANCE OF 341.38 FEET TO POINT "C": THENCE CONTINUE NORTH 27°5594" WEST A DISTANCE OF 75.57 FEET: THENCE NORTH 56 °15'03" EA.STA DISTANCE OF 147.98 FEET; THENCE NORTH 49"3849- EAST'A DISTANCE OF 122.30 FEET: THENCE NORTH 16'29'31 - EAST A DISTANCE Of! 101.06 FEET: THENCE NORTH 11'20' I7- WEST A DISTANCE OF 9.79 FEET TO AN INTE•RSF.CTION W M In lE NORTHERLY LINE OF THE PL-LICAN BAY MAINTENANCE AREA AND THE POINT OF TERMINUS OF THE CENTERLINE HEREIN DESCRIBED AND BEGINNING AT THE AFOREMENTIONED POINT "C- SAID POINT BEING THE BEGINNING OF A 1000 FELT WIDE UTILITY EASEMENT LYING 5.00 FEET ON EACH SIDE OF TIIE FOLLOWING CENTERLINE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS; THENCE SOUTH 60' 14'45" W EST A DISTANCE OF 153.76 FEET: THENCE NORTH 68'46'14" WEST A DISTANCEOF 208.35 FELTTOTHE POINT OF TERMINUS OF THE CENTERLINE HEREIN DESCRIBED CONTAININIAA TOTAL OF 16.911 S.F. 1 GENERAL NOTES: I. DIMENSIONS ARE f: FEET AND DECIMALS THEREOF. 5. BEARINGS ARE BASED ON PELICAN BAY UNIT 2 PLAT. 2. P.O.B. POINTOFB GINNING 6. P.B.1.D. PELICAN BAY IMPROVEMENT DISTRICT 3. P.O.C. - POINT OF C IMENCEMENT T (P) - PLATTED 4. P.Q.T. POINT OF TERMINUS 8. REF: OR 3755, PG 2(27 SHEET 2 OF 2 for: pro Ject: PELICAN BAY SUMMIT BROADBAND - UTILITY EASEMENT title: date: SKETCH AND DESCRIPTION OF UTILITY EASEMENT FEB. 3, 2014 1&GNOIJ scale: book; Certificate of Authorization Noe. LB 3884 and 8B 3864 l S POSE: Fax: (239)586 -2203 RB , R & 1project view: I M00111RUNDAGE, ixc no" 14 -0011 Professional engineers, planners, & land surveyors ocad: file no: Collier County: Suite 260, 7400 Tamiami Trail, North; Naples, FL 34108 (239)597 -3111 11057 -SD 11057 Packet Page -1425- 2/25/2014 16.E.9. Exhibit A (2 of 3) Packet Page -1426- CV '