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Agenda 05/25/2010 Item #16D 4 Agenda Item No. 16D4 May 25,2010 Page 1 of 12 EXECUTIVE SUMMARY Recommendation to approve a Ground Lease Agreement for Communications Tower with New Cingular Wireless PCS, LLC, for land at Max Hasse Community Park for a first year's rent income of $40,000. OBJECTIVE: Approve a Ground Lease Agreement for Communications Tower with New Cingular Wireless PCS, LLC. for land at Max Hasse Community Park. CONSIDERATIONS: The County has negotiated a Ground Lease Agreement (Agreement) with New Cingular Wireless PCS, LLC (Cingular), for use of a thirty-five foot by twenty-five foot parcel of land within the Max Hasse Park, as well as approval to replace an existing light pole with a 160' high stealth style communications tower. Cingular will replace the field lights on the tower. Pursuant to Florida Statue 125.35, the County advertised the availability of this property for lease. There were two responses and Cingular was the more superior proposal. A copy of the advertisement and the two responses are on file in Real Property Management. The proposed Agreement provides Cingular with a ten year initial lease term with four separate five year renewals. The first year's annual rent is $40,000 and shall be increased by four percent annually from the previous year's rent. Cingular is required to obtain the required use permits, conditional or otherwise for constructing and operating the tower. If Cingular fails to obtain the necessary permits, the lease will become null and void. The Agreement also includes a non-exclusive access easement and temporary construction easement. At the termination of the Lease, Cingular shall remove all of its equipment and return the property back to its original state. Cingular will provide the top three highest tower locations to the County, without cost, for the County's communications equipment that supports the public safety and emergency management communications systems. Cingular will provide and construct, at no cost to the County, a fenced compound to accommodate an above-ground equipment shelter and diesel generator, which will run independently from Cingular's equipment. Cingular shall also pay for the County's monthly electrical charges for its equipment. FISCAL IMPACT: The annual rent of $40.000 shall be deposited into MSTD General Fund (111), Max Hasse Park (156395), Lease Radio Tower (362110). GROWTH MANAGEMENT IMPACT: There is no impact to the Growth Management Plan. LEGAL CONSIDERATIONS: The proposed Ground Lease Agreement for Communications Tower is legally sufficient for Board action. - JBW RECOMMENDATION: That the Board approves the Ground Lease Agreement for Communications Tower with New Cingular Wireless PCS, LLC, and authorize its Chairman to execute same. PREPARED BY: Michael Dowling, Sr. Property Management Specialist, Real Property Management, Facilities Management Department Item Number: Item Summary: Meeting Date: Agenda Item No. 1604 May 25, 2010 Page 2 of 12 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 16D4 Recommendation to approve a Ground Lease Agreement for Communication Tower with New Cingular Wireless PCS, LLC, for land at Max Hasse Community Park for a first years rent income of $40,000. 5/25/20109:00:00 AM Property Management Specialist, Senior Date Prepared By Michael H. Dowling Administrative Services Division Facilities Management 5/5/20103:47:58 PM Director - Facilities Management Date Approved By Skip Camp, C.F.M. Administrative Services Division Facilities Management 5/5/20104:17 PM Date Approved By Toni A. Mott Administrative Services Division Manager - Property Acquisition & Const M Facilities Management 5/10/20108:29 AM Approved By Director w Parks & Recreation Date Barry Williams Public Services Division Parks & Recreation 5/10/201010:34 AM Project Manager Date Approved By Tony Ruberto Public Services Division Parks & Recreation 5/10/201011:11 AM Administrator - Public Services Date Approved By Marla Ramsey Public Services Division Public Services Division 5/11/201011 :31 AM Assistant County Attorney Date Approved By Jennifer White County Attorney County Attorney 5/11/20103:25 PM Date Approved By OMS Coordinator County Manager's Office Office of Management & Budget 5/12/20109:54 AM Managementl Budget Analyst, Senior Date Approved By Sherry Pryor Office of Management & Budget Agenda Item No. 16D4 May 25, 2010 Page 3 of 12 Office of Management & Budget 5/13/201012:10 PM Date Approved By Jeff Klatzkow County Attorney 5/13/20104:21 PM Date Approved By Leo E. Ochs, Jr. County Managers Office County Manager County Managers Office 5/15/20103:31 PM Lease # GROUND LEASE AGREEMENT FOR COMMUNICA nONS TOWER TIllS GROUND LEASE AGREEMENT FOR COMMUNICATIONS TOWER (the "Agreemenf') entered into this 25th day of May, 2010, between New Cingula! Wireless pes, LLC, a Delaware limited liability company, having a mailing address of 12555 Cingular Way, Suite 1300, Alpharetta, GA 30004, hereinafter referred to as "LESSEE", and COLLIER COUNTY, a political subdivision of the State of Florida, whose mailing address is 3301 East Tamiami Trail, Naples, Florida 34112, hereinafter referred to as "LESSOR. n WITNESSETH THE PARTIES AGREE AS FOLLOWS: ARTICLE t. Demised Premises LESSOR hereby leases to LESSEE and LESSEE hereby leases from LESSOR the area of one existing field light pole as shown on Exhibit "A" and referred to as 'Proposed 160' monopole,' which shall be replaced with LESSEES free-standing flagless flagpole communications tower, to be no higher than one hundred and sixt), feet above natural grade, at the base of the tower to the top of the tower, including any antennae mounted to the tower, and ground space measuring twenty-five (25) foot by thirty-five (35) foot for a fenced area for an above-ground equipment shelter and generah)r to supply the communications tower, located at the Max Hasse Park, hereinafter referred to collectively as the 'Tower,' which will he located at Max Hasse Park, 3396 Golden Gate Blvd, Naples, Florida, which is further described in Exhibit "A" and which is attached hereto and made a part of this Lease, hereinafter referred to as the "Demised Premises," situated in the County of Collier and the State of Florida, All improvements shall be approved by LESSOR applying, and subject to. the tenns contained in Article 5 of the Agreement. LESSEE shall provide LESSOR. without any cost of rent to LESSOR. three (3) locations on the tower at a height of one hundred fifty-five feet (155'), one hundred twenty.five feet (125') and one hundred fifteen feet (I 15'), in order for LESSOR to operate any future communications or surveillance equipment upon the tower. LESSEE shall provide to I,ESSOR, at no cost to LESSOR, a fenced area to accommodate an above.ground equipment cabinet and diesel generator for LESSOR'S exclusive use. LESSEE shall pay the cost of LESSOR'S monthly electric service at this site. LESSOR shall be responsible for the cost of purchasing its own antenna and for installing and operating its antenna, LESSEE shall be responsible for all costs associated with the maintenance and replacement of the Tower throughout the life of this Lease, Not withstanding any provision in this Lease, including Article 7 and Article 17, uron the termination or expiration of this Lease Agreement, LESSOR shall direct LESSEE to remove the Tower and replace same with a light pole as originally placed llpon the Demised Premises by LESSOR LESSEE shall be required to obtain the required use permit(s) (conditional or otherwise) for constructing and operating the communications tower and the shelter(s) at the Demised Premises pursuant to those terms outlined in the Collier County Land Development Code and all applicable ordinances. LESSOR authorizes ,LESSEE to prepare, execute and file all required applications to obtain all required permits for Tenant's Permitted Use WIder this Agreement and agrees to reasonably assist Tenant with such applications and with obtaining and maintaining the Government Approvals. LESSEE understands and acknowledges that the use granted for this use on the Demised Premises is based on a Conditional Use pursuant to Land Development Code (LDC) 2.03.0S.A.4.a.; 2.03.05,A; 2.03.05,A,3; and 2.01.02.A.4., which addresses the Public Use District (P) and Essential Services, If at any time after the initial tenn, as defined in Article 2 of this Agreement, LESSOR elects to remove its equipment from the tower, which is constructed by LESSEE, the use of the tower. under the aforementioned LDC sections, shall become a non-use for governmental/public purposes, and LESSOR shall advise LESSEE in writing of the non-use and termination of the Lease, and LESSEE shall be required to cease operations at the Demised Premises, and remove the tower at its sole cost and expense within 120 days of receiving notice oftennination, LESSOR does. not make any representations or warranties or permitted uses with respect to the Demised Premises to the LESSEE. The LESSEE accepts the Demised Premises in "as is" condition and there shall be no abatement for defects in the Demised Premises or from violations of law with respect thereof and LESSEE shall not hold LESSOR liable for any defects in or defective conditions of the Demised Premi~es or to title thereto. LESSEE'S obligation to perfonn under this Agreement shall be subject to and conditioned upon: (a) LESSEE'S obtaining, at its option and cost, a survey, geotechnical report and analysis tests which must show no defects which, in the opinion of the LESSEE, may adversely affect LESSEE'S use of the Demised Premises; (b) LESSEE'S approval of the condition of the Demised Premises, which may be subject to, at LESSEE'S option, an environmental audit of the Premises performed by an environmental consulting finn of LESSEE'S choice; (c) LESSEE'S securing appropriate approvals for LESSEE'S intended use of its Tower on the Demised Premises from the Federal Communications Commission, the Federal Aviation Administrator, and any other federal, state or local regulatory agency having jurisdiction over LESSEE'S proposed use of the Tower; and (d) In the event of a failure of any of the above referenced conditions precedent within 180 days of execution of this Agreement, LESSEE may terminate this Agreement through written notice to LESSOR and by restoring the Demi~d Premises to its condition as of the date of the execution ofrhis Agreement. (e) LESSEE shall inform Lessor, in writing, regarding the title rcport, geotechnical report and analysis, environmental audit, and obtaining required government approvals. LESSOR hereby grants to LESSEE fl non-exclusive access easement throughout the life of this Lease for free ingress and egress and for the installation and transmission of utililies on the Demi!>ed Premises seven (7) days a week, twenty-four (24) hours a day. No above-ground structures shall be constructed in the access easement or outside of the Demised Premises. Said easement area is shown on Exhibit HA." LESSOR hereby grants to LESSEE a non-exclusive temporary construction easement, hereinafter referred to as 'Easement Area,' where indicated on Exhibit "A", in order to access the Demised Premises during construction of the communications tower and related ground equipment area. LESSEE agrees to restore the surface and subsurface of the Easement Area after construction has been completed, induding, but limited to, the ball field's ground and grass. The Easement shall expire upon tbe issuance of the Certificate of Occupancy for the Demised Premises. Concurrently with the initial construction of the tower, at no cost to LESSOR, LESSEE shall relocate and install the existing lights from the existing light pole at the same height they are currently located to the new tower, and LESSEE shall ensure that all relocated lights arc operational LESSEE shall locate its communications equipment at 145 foot and 135 foot CL and provide LESSOR with three (3) primary locations at 155 feet CL, 125 feet CL and 115 feet. LESSEE is pennitted to sublease any other available space on the tower, ifthc tower is deemed worthy of additional equipment, to other wireless carriers. LESSEE shall provide the LESSOR with an air-conditioned equipment shelter, power connections, free monthly electricity and back-up power at no cost to LESSOR. LESSOWs equipment shall be located outside of the Dcmised Premises in a location reasonably close to the tower LESSOR shall not be responsible for any cost for any improvements or utilities made to or provided to the tower, or to the Demised Premises, or the equipment shelter. LESSOR shall be solely responsible for any costs for its equipment and installation of its equipment. ARTICLE 2. T enn of Lease The initial tenn of this Lease Agreement shall be for a term often (10) years (the "Initial Term") commencing upon the date LESSEE starts construction, or within 27U days after this Agreement is executed by LESSOR, whichever occurs first, hereinafter r~rerred to as the "Commencement Date." This Lease will be automatically renewed for four (4) separate additional terms of five (5) years each, hereinafter referred to as the "Four (4) Year Renewal Terms", unless LESSEE notifies LESSOR of its intentions not to renew at least ninety (90) days prior to expiration of the then cutTenllerm of the four (4) Year Renewal Terms. As stated above in this Agreement, LESSEE understands and acknowledges that the use granted for this use on the Demised Premises is based on a Conditional Use pursuant to Land Development Code (LDC) 2.03.05.A.4.a.; 2.03.05.A; 2,03.05.A.3; and 2,Ol.02.AA., which addresses the Public Use District (lJ) and Essential Services. LESSOR reserves the right to terminate this Lease, by providing LESSEE with written notice, if LESSEE shan violate any provisions of this Lease and not remedy such defaults as required in Article 11 herein. LESSEE shall tcnninate this Lease, at allY time, with or without cause, by providing LESSOR with Ninety (90) day advanced written notice. In addition. LESSEE covenants and agrees not to use, occupy, suffer or permit said Demised Premises or any part thereof to be used or occupied for any purpose that is not authorized by this Lease or is contrary to law or rules or regulations of any public authority having jurisdiction over the Demised Premises. ARTICLE 3. Annual Rent Commencing on tlle first day of the month following the Commencement Date, LESSEE hereby covenants and agrees to pay as rent for the Demised Premises the sum of Forty Thousand Dollars and 00/1 00 ($40,000.00) hereinafter referred to as "Annual Rent," that is to be paid in full, for rent for the first year of occupancy, and shall be forwarded to Real Property Management at the address set forth in Article I] of this Agreement. 2 Following the first full year of Annual Rent, the Annual Rent set forth above shall be increased by an amount equal to five percent (5%) over the Rent paid by LESSEE during the preceding year. For example, the rent due on the first anniversary date in 2010 shall be $42,000; the rent due on the second anniversary date in 2011 shall be $44,100; the rent due on the third anniversary date in 2012 shall be $46,305; and the rent due on the fourth anniversary date in 2015 shall be $48,620,25. ARTICLE 4. Other Exoenses and Charsres LESSEE shall pay all utility charges applicable to the Demised Premises including, but not limited to charges for electricity, air conditioning, water, telephone or other communication services used, rendered or supplied thereupon or in connection with the Demised Premises. LESSOR shall pay all utiHty charges applicable to the lights whicb are to bc relocated from tbe existing light pole and installed by LESSEE on the fre~-standing communications tower, and LESSOR shall pay for utility charges pertaining to any surveillance equipment that may be placed on the Tower by LESSOR. ARTICLE 5. Modifications to Demised Premises Prior to making any changes, alterations, additions or improvements to the Demised Premises which would increase the amount of leased space or require a penn it, LESSEE must provide to LESSOR all proposals and plans for alterations, improvements, changes or additions to the Demised Premises for LESSORtS written approval, specifying in writing. and in meaningful detail, the nature and extent of the desired alteration, improvement, change, or addition. aiong with the contemplated slarling and completion time for such project. LESSOR or its designee will then have up to thirty (30) days within which to approve or deny in writing said request for changes, improvements, alterations or additions. LESSOR shall not unreasonably withhold, condition or delay to its consent lo required or appropriate alterations, improvements, changes or additions proposed by LESSEE. LESSEE agrees and acknowledges that it is solely responsible for obtaining all licenses, permits and variances that may be required for its contemplated use of the Demised Premises. LESSEE covenants and agrees in connections with any maintenance, repair work, erection, construction, improvement. addition or alteration of any authori;.o:ed modifications, additions or improvements to the Demised Premises. to observe and comply with all then and future applicable laws, ordinance, rules, regulations, and requirements of the United Sates of America, State of Florida, County of Collier, and any and all other governmental agencies having subject matter jurisdiction. The execution of this Lease by LESSOR shall not be construed by LESSEE as a substitute for, or exemption from, those licenses, pennits, or variances that may be needed by the LESSEE for its contemplated use of the Demised Premises, nor exempt the LESSEE from its duties under Federal, State and local laws. Notwithstanding anything to the contrary, LESSEE may upgrade its installation without the consent of the LESSOR. For the purpose of this Article, "Upgrade" shall refer to replacements, improvements or enhancements to the installation which would not increase the amount of leased space on the ground and mayor may not otherwise require a permit. ARTICLE 6. Access to Demised Premises LESSEE, its duly authorized agents, contractors, representatives, employees and other LESSEEs shall have the right to enter into and upon the Demised Premises twenty~four (24) hours a day, seven (7) days a week at no extra charge. ARTICLE 7. Assilp1Il1ent and Sublettin. LESSEE may assign this Lease provided LESSEE promptly notifies LESSOR of such assignment and the assignment is subject to the provisions of this Lease. Further, LESSEE may, upon notice to LESSOR, mortgage or grant a security interest in this Lease and the Communications Facility, and may assign this Lease and the Communications Facility to any such mortgagees or holders of security interests including their successors and assigns (hereinafter collectively referred to as "Mortgagees"). In such event, LESSOR shall execute such consent to leasehold financing as may reasonably be required by Mortgagees. LESSOR agrees 10 notifY LESSEE and LESSEE'S Mortgagees simultaneously of any default by LESSEE and to give Mortgagees the same right to cure any default as LESSEE. LESSEE may sublease or license the Demised Premises or any portion of the Tower or shelter to others for the purpose of radio transmission and communications services. LESSEE shall notifY LESSOR within ninety (90) days after entering into a sublease or sublicense agreement. ARTICLE 8. Indemnitv (a) LESSEE agrees to indemnify, defend and hold LESSOR harmless from and against any and all injury, loss. damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys' fees and court costs) arising directly from the installation, use, maintenance, repair or removal of the Communication Facility or LESSEE's breach of any provision of this Agreement, except to the extent auributable to the negligent or intentional act or omission of LESSOR, its employees, agents or independent contractors. (b) Only to the extent authorized by 768.28, Florida Statute, LESSOR agrees to indemnify, defend and hold LESSEE harmless from and against any and all injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys' fees and court costs) arising directly from the actions or failure to act of LESSOR or its employees or agents, or LESSOR's breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of LESSEE, its employees, agents or independent contractors. (c) Notwithstanding anything to the contrary in this Agreement, LESSEE and LESSOR each waives any claims that each may have against the other with respect to consequential, incidental or special damages. ARTlCLE9.~ LESSEE shall provide- and maintain general liability and properry liability insurance policy(jes), approved by the Collier County Risk Management Department, for not less than One Million Dollars ($1,000,000.00) combined single limits during the term of this Agreement. In addition, LESSEE shall provide and maintain Worker's Compensalion Insurance covering all employees meeting Statutory Limits in compliance with the applicable state and federal laws. The coverage shall include Employer's Liability with a minimum limit of One Hundred Thousand Dollars and Noll 00 Cents ($100,000.00) each accident. Such insurance policy(ies) shall list and continuously maintain Collier County as an additional insured thereon. Evidence of such insurance shall be provided to the Collier County Risk Management Department, 3301 East Tamiami Trail, W. Harmon Turner Building, N!:lples, Florida, 34112, for approval prior to the commencement of this Lease Agreement; and shall include a provision requiring not less th:ln ten (10) days prior written notice to Collier County cia County Risk Management Department in the event or cancellation or changes in policy(ies) coverage. LESSOR reserves the right to reasonably amend the insurance requirements by issuance of notice in writing to LESSEE, whereupon receipt of such notice LESSEE shall have thirty (30) days in which to obtain such additional insurance. ARTICLE 10. Maintenance LESSEE shall maintain the tower and all related ground equipment at its sole cost and expense. If by LESSEE'S use of the property, the Demised Premises are not kept clean in the opinion of LESSOR, LESSEE will he so advised in writing, If corrective action is not taken within ten (10) days of the receipt of such notice, LESSOR may cause the same to be cleaned and corrected and LESSEE shall assume and pay all such necessary cleaning costs and such costs shall constitute additional rent which shall be paid by LESSEE within ten (10) days of receipt of wriuen notice of costs incurred by LESSOR. LESSEE, at its sole cost, shall repair all damage to the Demised Premises caused by LESSEE, its employees, agents, independent contractors, guests, invitees, licensees, or patrons. If applicable, LESSEE, at its sole cost, shall remove from the Demised Premises in accordance with a1\ applicable rules, laws and regulations, a1\ solid, liquid, semisolid, and g,L~eollS trash and waste and refuse of any nature whatsoever which accumulates or arises from l.ESSEE'S use ofthc Demised Premises, Such trash, waste and refuse shall be stored in closed containers approved by the LESSOR. ARTICLE 11. Default hv LESSEE Failure of LESSEE to commence remedy of default as soon as possible and to complete remedy of default in thirty (30) days with any provision or covenant of this Lease shall constitute a default whereby LESSOR may, al its option, terminate this Lealie by giving LESSEE thirty (30) days written notice to vacate the Demised Premises unless the default is fully cured within that thirty (30) day notice period If the default may not reasonably be cured within a thirty (30) day period, LESSOR may not terminate this Agreement if the defaulting party commences action to cure the default within such thirty (30) prior and proceeds with due diligence to fully cure the default. However, the occurrence of any of the following events shall constitute a default by LESSEE and this Lease may be immediately terminated by LESSOR except to the extent then prohibited by law: (a) Abandonment or Demised Premises or discontinuation of LESSEE'S operation. (b) Falsification of LESSEE or an agent of LESSEE of any report required to be furnished to LESSOR pursuanl10 the temlS of this Lease. (e) Filing of insolvency, reorganization, plan or arrangement of bankruptcy. (d) Adjudication as bankrupt. (e) Making of a general assignment of the benefit of creditors. (1) If LESSEE suffers this Lease to be taken under any vvrit of execution. The LESSOR may, at its option, terminate this Lease after providing LESSEE with thirty (30) days written notice if a lien is filed against the leasehold interest of the LESSEE, and the lien is not removed within that thirty (30) day notice period. pursuant to the law or otherwise. If LESSEE fails to pay, when due, any rental payment, or any other sum payable to LESSOR under this Lease, and if said sum remains unpaid for more than ten (10) days past the due date, the LESSEE shall pay LESSOR a late payment charge equal to five (5) percent of any payment not paid promptly when due. Any amounts not paid promptly when due shall also accnle simple interest of one and one half (I \4) percent per month or the highest interest rate then allowed by Florida law, whichever is higher, which interest shall be paid by LESSEE to LESSOR. ARTICLE 12. Default bv LESSOR LESSOR shal1 in no event be charged with default in the performance of any of its obligations hereunder unless and until LESSOR shall have failed to perform such obligations within thirty (30) days (or such additional time as is reasonably required to correct such default) after written notice to LESSOR by LESSEE properly and in meaningful detail specifying wherein LESSOR has failed to perform any such obligations. If LESSOR fails to perform such obligations within a reasonable amount of time following thirty (30) days written notification, LESSEE will have: (i) the right to cure LESSOR's default and to deduct the costs of such eure from monies due to LESSOR from LESSEE, and (ii) any and all olherrights available to it under law and equity. ARTICLE 13. Notices Any notice which LESSOR or LESSEE may be required to give to the other party shall be in writing delivered to the other party at the following addresses, or changes thereto which have been notified to the other party: LESSEE: New Cingular Wireless pes, LLC Attn: AT&T Network Real Estate Administration Re: Cell Sile #313X0051; Cell Site Name: Pine Rid.e Il Fixed Asset No: 10127365 12555 Cingular Way, Suite 1300 Alpharella, GA 30004 With a copy to: New Cingular Wireless pes, LLC Attn: Legal Department Re: Cell Site #313X0051; Cell Site Name; Pine RidlZe II Fixed Asset No; 10127365 1025 Lenox Park Blvd. Sf.!, Floor AiI,"ta, GA 30319 LESSOR: Board of County Commissioners c/o Real Property Management Building W 3301 Tamiami Trail East, Administration Building Naples, Florida 34112 Copy to: Office of the County Attorney ARTICLE 14. Surrender of Premises At the ex.piration or termination of this Lease, at its sole cost and expense, LESSEE shall remove its antenna and any related equipment placed above grade and upon the Demised Premises throughout the life of this Lease within One hundred and twenty (120) days from the expiration, tennination, or early tennination of this Lease. ARTICLE 15. General Provisions LESSEE fully understands that the police and law enforcement security protection provided by law enforcement agencies for the above-referenced Demised Premises is limited to that provided to any other business or agency situated in CoWer County, and acknowledges that any special security measures deemed necessary for additional protection of the Demised Premises shall be the sole responsibility and cost of LESSEE and shall involve no cost or expense to LESSOR. LESSEE expressly agrees for itself, its successor and assigns, to refrain from any use of the Demised Premises which would interfere with or adversely affect the operation or maintenance of LESSOR'S standard operations where other operations share common facilities or otherwise. (a) Rights not specifically granted the LESSEE by this Lease are hereby reserved to the LESSOR. (b) LESSEE agrees to pay all tax imposed on the leasehold interest or otherwisc related to the rental of the Demiscd Premises to the exlent applicable under law. (e) LESSEE agrees to pay all intangible personal property taxes and other taxe~, if any, that may be imposed due to the creation, by this Lease, of a leasehold interest in the Demised Premises or LESSEE'S possession of said leasehold interest in the Demised Premises. ARTICLE 16. Environmental Concerns If after LESSEE takes possession of the Demised Premises, hazardous materials are discovered to exist on, under or beneath the Demised Premises, LESSEE may terminate this Agreement and LESSEE shall owe no further duties, obligations or liability to LESSOR. LESSOR shall he responsible for, and hold LESSEE harmless from, any exptmses incident to the abatement or compliance with the- requirements of any federal, state or local starutory or regulatory requirements cau~ed directly or indirectly by the activities of LESSOR and LESSOR'S agents, employees or contractors, or resulting: from the presence of Hazardous Materials hereafter brought onto the Premises by LESSOR'S or LESSOR'S agents, employees, licensees, invitees, tenants or contractors. LESSEE shall comply with all laws, ordinances, rules, orders or regulations applicable to Hazardous Materials. LESSEE shall not use the Premises or the Easement for treatment, storage, transportation to or fTOm, use or disposal of Hazardous Materials (other than petroleum products necessary for the operation of an emergency electrical generator to serve the Equipment). LESSEE shall be responsible for and hold Lessor hannless from, any expense incident to the abatement or compliance with the requirements of any fedcral, state or local statutory or regulatory requirements caused, directly or indirectly, by the activities of LESSEE or LESSEE'S agents, employees or contractors, or resulting from the presence of any Hazardous Materials brought onto the Premises by LESSEE, LESSEE'S agents, employees. Iicensecs, invitees, or contractors. As used in this Agreement, "Ha7.ardous Materials" shall mean any and all polychlorinated byphcnyls, pctroleum products, ashestos, urea formaldehyde and other hazardous or toxic materials, wastes or substances, any pollut.ant.~, and/or contaminants, or any other similar subsLances or materials which arc defined or identified as such in or regulated by any iederal. state or loeallaws, rules or regulations (whether now existing or hereinafter enacted) pertaining to environmental regulations, contamination, cleanup or any judicial or administrative interpretation of such laws, rules or regulations or any substance that after release into the environment and upon exposure, ingestion, inhalation or assimilation, either directly from the environment or directly through food chains will or may reasonably be anticipated to cause death, disease, behavior abnomlalities, cancer or genetic abnormalities. ARTICLE 17. Interference (a) Where there are existing radio frequency user(s) on the Property, the LESSOR will provide LESSEE with a list of all existing radio frequency user(s) on the Property to aUow LESSEE to evaluate the potential for interference. LESSEE warrants that its use orthe premises will not interfere with existing radio frequency user(s) on the Property so disclosed by LESSOR, as long as the existing radio frequency user(s) operate and continue to operate within their respective frequencies and in accordance with all applicable laws and regulations. (b) LESSOR will not use, nor will LESSOR permit its employees, LESSEEs, licensees, invitees or agents to use, any portion of the Property in any way which interferes with the Communication Facility, the operations of LESSEE or the rights of LESSEE under this Agreement. LESSOR will cause such interference to cease within t\>.'enty-four (24) hours after receipt of notice of interference from LESSEE. In the event any such interference does not cease within lhe aforementioned cure period then the parties acknowledge that LESSEE will suffer irreparable injury, and therefore, LESSEE will have the right, in addition to any other rights that it may have at law or in equity, for LESSOR's breach of this Agreement, to elect to enjoin sllch interference or to terminate this Agreement upon notice to LESSOR. LESSEE covenants and agrees that LESSEE'S communications equipment its installations, operations and maintenance will: a) not interfere with the operation of LESSOR'S communications in the immediate area. In the event there is interference by LESSEE, LESSEE will promptly take all steps necessary to correct and eliminate same within a reasonable period of time. If LESSEE is unable to eliminate such interference caused by it wilhin 48 hours after receipl of wriLten notice from LESSOR, LESSEE shall temporarily disconnect the electric power and shut down its equipment (except for intermittent opcration for the purpose of testing, after perfonning maintenance, repair, modification replacement, or other action taken for the purpose of correcting such interference) and if such interference is not corrected within 30 days after receipt of the written notice, Tenant agrees to remove the Equipment from the Communication Tower dnd this Agreement shall terminate as if by expiraLiun; b) Not Interfere 6 with the maintenance of LESSOR'S operations at the Demised Premises; c) Comply with all applicable rules and regulations of the Federal Communications Commission and electrical codes of the City and/or State concerned. ARTICLE 18. RAdon Gas In compliance with Section 404.056, Florida Statutes, all parties are hereby made aware of the following: Radon is a naturally occurring mdioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional infonnation regarding radon and radon testing may be obtained from your county public health unit. ARTICLE 19. Extent of Liens All persons to whom these presents may come are put upon notice that no interest of the LESSOR in the Demised Premises shall not be subject to liens for improvements made by or through the LESSEE, also for improvements made by the LESSEE are specifically prohibited from attaching to or becoming a lien on the interest of the LESSOR in the Demised Premises or any part of either. This notice is given pursuant to the provisions of and in compliance with Section 713.10, Florida Statutes. ARTICLE 20. Effective Date This Lease shall become effective, upon execution by LESSOR. ARTICLE 21. Gov~rniog Law This Lease shall be governed by and construed in accordance with the laws of the State of Florida. ARTICLE 22. SALE OF PROPERTY If LESSOR, at any time during the Tenn of this Agreement, decides to sell, subdivide or rezone any of the Premises, all or any part of the Property or Surrounding Property, to a purchaser other than LESSEE, LESSOR shall promptly notify LESSEE in writing, and such sale, subdivision or rezoning shall be subject to this Agreement and LESSEE's rights hereunder. In the event the Property is transferred, the new LESSOR shall have a duty at the time of such transfer to provide LESSEE with a completed IRS Form W.9, or its equivalent, and other related paper work to cffect a transfer in Rent to the new LESSOR Thc provisions of this Paragraph 22 shaH in no way limit or impair the obligations of LESSOR under Paragraph 8 above. ARTICLE 23. CONDEMN A TION tn the event LESSOR receives notification or any condemnation proceedings atTecting the Property, LESSOR wil! provide notice of the proceeding to LESSEE within forty.eight (48) hours. If a condemning authority takes all of the Property, or a portion sufficient, in LESSEE's sole determination, to render the Premises unsuitable for LESSEE, this Agreement wil1tenninate as of the date the title vests in the condemning autbority. The parties will each be entitled to pursue tlleir own separate awards in the condemnation proceeds, which for LESSEE will include, where applicable, the value of its Communication Facility, moving expenses, prepaid Rent, and business dislocation expenses. LESSEE will be entitled to reimbursement for any prepaid Rent on a prorata basis. ARTICLE 24. CASUALTY LESSOR will provide notice to LESSEE of any casualty or other hann affecting the Property within forty. eight (48) hours of the casualty or other harm. If any part of the Communication Facility or Property is damaged by casualty or other harm as to render the Premises unsuitable, in LESSEE's sole determination, then LESSEE may temlinate this Agreement by providing written notice to LESSOR, which tennination will be effective as of the date of such casualty or other harm. Upon such termination, LESSEE will be entitled to collect aU insurance proceeds payable to LESSEE on account thereof and to be reimbursed for any prepaid Rent on a prorata basis. LESSOR agrees to permit LESSEE to place a temporary transmission and reception facilities on the Property, but only until such time as LESSEE is able to activate a replacement transmission facility at another location; notwithstanding the termination of the Agreement, such tcmporary facilities will be governed by all ur the terms and conditions of this Agreement, including Rent. If LESSOR or LESSEE undertakes to rebuild or restore the Premises and/or the Communication Facility, as applicable, LESSOR agrccs to permit LESSEE to place temporary lransmission and reception facilities on the Property at no additional Rent until the reconstruction of the Premises and/or the Communication Facility is completed. If LESSOR determines not to rebuild or restore the Premises, LESSOR will notify LESSEE of such delemlination within thirty (30) days after the casualty or other harm. If LESSOR does not so notify LESSEE, then LESSOR will promptly rebuild or restore the Prcmises to substantially the same condition as cxisted before the casualty or other harm. LESSOR agrees that the Rent shall be abated until the Premises arc rebuilt or restored, unless LESSEE places temporary transmission and reception facilities on the Property. ARTICLE 25. MISCELLANEOUS Agenda Item May Page (a) Amendment/Waiver. This Agreement cannot be amended, modified or revised unless done in writing and signed by an authorized agent of the LESSOR and an authorized agent of the LESSEE. No provision may be waived except in a writing signed by both parties. (b) Memorandum/Short Form Lease. Either party will, at any time upon fifteen (15) business days prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum or Short Form of Lease. Either party may record this Memorandum or Short Form of Lease at any time, in its absolute discretion, at the recording party's expense. (c) Bind and Benefit. The terms and conditions contained in this Agreement will run with the Property and bind and inure to the benefit of the parties, their respective heirs, executors, administrators, successors and assigns. (d) Entire Agreement. This Agreement and the exhibits attached hereto, all being a part hereof. constitute the entire agreement of the parties hereto and will supersede all prior offers, negotiations and agreements with respect to the subject matter of this Agreement. (f) Interpretation. Unless otherwise specified, the following rules of construction and interpretation apply: (i) captions are for convenience and reference only and in no way define or limit the construction of the terms and conditions hereof; (ii) use of the term "including" will be interpreted to mean "including but nOllimited to"; (iii) whenever a party's consent is required under this Agreement. except as otherwise stated in the Agreement or as same may be duplicative, such consent will not be unreasonably wilhheld, conditioned or delayed; (iv) exhibits are an integral part of the Agreement and are incorporated by reference into [his Agreement; (v) use of the terms "termination" or "expiration" are interchangeable: (vi) reference to a default will take into consideration any applicable notice, grace and cure periods; and (vii) to the extent there is any issue with respect to any alleged, perceived or actual ambiguity in this Agreement, the ambiguity shall not be resolved on the basis of who drafted the Agreement. (g) Estoppel. Either party wilL at any time upon twenty (20) business days prior written notice from the other, execute, acknowledge and deliver to the other a statement in writing (i) certifying that this Agreement is unmodified and in full force and effecL (or, if modified, stating the nature of such modification and certifying this Agreement, as so modified, is in full forct and effect) and the date to which the Rent and other charges are paid in advance, if any, and (ii) acknowledging that there are not, to such party's knowledge, any uncured defaults on the part of the other party hereunder, or specifYing such defaults if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrance of the Premises. The requested party's failure to deliver such a statement within such time will be conclusively relied upon by the requesting party that (i) this Agreement is in full force and effect, without modification except as may be properly' represented by the requesting party, (ii) there are no uncured defaults in either party's performance, and (iii) no more than one month's Rent has be-en paid in advance. (h) W-9. LESSOR agrees to provide LESSEE with a completed tRS Form W-9, or its equivalent, upon execution of this Agreement and at sllch other times as may be reasonably requested by LESSEE. (i) No Electronic SignatureINo Option. The submission of this Agreement to any party for examination or consideration docs not constitute an offer, reservation of or option for the Premises based on the terms set forth herein, This Agreement will become effective as a binding Agreement only upon the handwritten legal execution, acknowledgment and delivery hereofhy LESSOR and LESSEE. U) Severability~ lfany tenn or condition of Ihis Agreement is found unenforceable, the remaining terms and condi6ons will remain bindin~ upon the panies as though said unenforceable provision were not contained herein. However, if the invalid, illegal or unenforceable provision materially affects this Agreement then the Agreement may be terminated by either party on ten (10) business days prior written notice to the other party hereto. (k) Counterpart!l This Agreement may be executed in two (2) or more counterparts, all of which shall be considered on and the same agreement and shall become effective when one or more counterparts have been signed by each of the palties. It being understood that all pal1ic~ need not ~ign the same counterpart. IN WITNESS WHEREOF, the parties hereto have hereunder set forth their hands and seals. AS TO TIlE LESSOR: DATED: ATfEST: DWIGHT E. BROCK, Cterk BOARD OF COUNTY COMMISSIONERS COLLIER COUJ-;TY, FLORIDA BY: FRED W. COYLE. Chainnan Deputy Clerk Approved a. to form & legel Sufficiency ~1=\\.0~ Assistant County AftrJrney AS TO THE LESSEE: DATED: WITNESSES: (Signature) (print Name) (Signature) (Print Name) Approved as to form and legal sufficiency: ~~~ Jennifer B. White, Assistant County Attorney New Cingular Wireless pes, LLC, a Delaware limited liability company By: AT&T Mobility Comoration By: (Print name) Its: Agenda Item N May Page