Backup Documents 06/08/2010 Item #16D 8ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLID O
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO Q
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document. Original documents should be hand delivered to the Board Office- the completed routing slip and original
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ROUTING SLIP
Complete routing lines # 1 through 44 as appropriate for additional signatures, dates, and/or information needed. If the document is already complete with the
eYocminn of the Chairman's sivnatno, draw a line. thrnunh rnWino Inec X I thrnu,h d4 emmulele the eheckho and fnrwa.d to SnP Pik— rhnr tl5l
Route to Addressee(s)
(List in routing order)
Office
Initials
Date
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Applicable)
2.
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Agenda Item Number
3.
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4.
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Number of Original
Documents Attached
5. Ian Mitchell, BCC Office
Supervisor
Board of County Commissioners
6. Minutes and Records
Clerk of Court's Office
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PRIMARY CONTACT INFORMATION
(The primary contact is the holder of the original document pending BCC approval. Normally the primary contact is the person who created/prepared the executive
summary . Primary contact information is needed in the event one of the addressees above, including Sue Filson, need to contact staff for additional or missing
information. All original documents needing the BCC Chairman's signature are to be delivered to the BCC office only after the BCC has acted to approve the
item )
Name of Primary Staff
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Pho N
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Applicable)
Agenda Date Item was
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Agenda Item Number
Approved by the BCC
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Type of Document
Attached
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Number of Original
Documents Attached
INSTRUCTIONS & CHECKLIST
I. Ions/ Counly Porno/ BCC Forms/ Original Docurncnu, Routing Slip W WS Original 9.03.04, Revi:cd 1.26 05, Rcr ised 2241 05, Revised 9 I 09
Initial the Yes column or mark "N /A" in the Not Applicable column, whichever is
Yes
N/A (Not
_
appropriate.
(Initial)
Applicable)
1.
Original document has been signed/initialed for legal sufficiency. (All documents to be
signed by the Chairman, with the exception of most letters, must be reviewed and signed
by the Office of the County Attorney. This includes signature pages from ordinances,
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contracts, agreements, etc. that have been fully executed by all parties except the BCC
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Chairman and Clerk to the Board and possibly State Officials.)
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3.
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4. >
"Sign here" tabs are placed on the appropriate pages indicating where the Chairman's
signature and initials are required.
5.
In most cases (some contracts are an exception), the on iginal document and this routing slip
should be provided to Ian Mithchell in the BCC office within 24 hours of BCC approval.
Some documents are time sensitive and require forwarding to 'I allahassee within a certain
time frame or the BCC's actions are nullified. Be ' var_ of your deadlines!
6.
The document was approved by the IWC on W _L0_(cntcr date) and all changes
made during the meeting have been inc orpOra ed in the attached document. The
Count] Attorney's Office has reviewed the
I. Ions/ Counly Porno/ BCC Forms/ Original Docurncnu, Routing Slip W WS Original 9.03.04, Revi:cd 1.26 05, Rcr ised 2241 05, Revised 9 I 09
160 �8
MEMORANDUM
Date: June 11, 2010
To: Michael Dowling, Property Management Specialist
Real Estate Services
From: Martha Vergara, Deputy Clerk
Minutes & Records Department
Re: Ground Lease Agreement for Communications Tower
Attached for your records is a copy of the document referenced above
(Agenda Item #16D8) approved by the Board of County Commissioners
on Tuesday, June 8, 2010.
Please forward for additional signatures and return the fully executed
original back to the Minutes & Records Department.
If you should have any questions, please contact me at 252 -7240.
Thank you.
Attachments
160 $
Lease # P <:�,- 1 ^� 5
/(� 7-
GROUND LEASE AGREEMENT
FOR COMMUNICATIONS TOWER
THIS GROUND LEASE AGREEMENT FOR COMMUNICATIONS TOWER (the "Agreement") entered into
this 8th day of June, 2010, between New Cingular Wireless PCS, 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."
WITNESSF.,TH
THE PARTIES AGREE AS FOLLOWS:
ARTICLE I. 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 sixty 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 generator to supply the communications tower, located at the Max Hasse Park, hereinafter referred to
collectively as the `Tower,' which will be 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 terms 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 fifteen feet (1 15') and one hundred five feet (105'), in order
for LESSOR to operate any future communications or surveillance equipment upon the tower. LESSEE shall provide
to LESSOR, 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,
upon 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 upon 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 under 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) 2.03.05.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 term, 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 of termination.
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 Premises or to title thereto.
LESSEE'S obligation to perform 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 firm of
LESSEE'S choice;
160 8
(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 Demised Premises to its condition as of the date of the execution of this Agreement.
(e) LESSEE shall inform Lessor, in writing, regarding the title report, geotechnical report and analysis,
environmental audit, and obtaining required government approvals.
LESSOR hereby grants to LESSEE a non - exclusive access easement throughout the life of this Lease for free
ingress and egress and for the installation and transmission of utilities on the Demised 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 "A."
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, including, but limited to, the ball field's ground and grass. The
Easement shall expire upon the 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 are 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, 115 feet Cl, and 105 feet. LESSEE is permitted to sublease any other
available space on the tower, if the 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. LESSOR's equipment shall be located outside of the
Demised 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. Term of Lease
The initial term of this Lease Agreement shall be for a term of ten (10) years (the "Initial Term ") commencing
upon the date LESSEE starts construction, or within 270 days after this Agreement is executed by LESSOR,
whichever occurs first, hereinafter referred 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 current term 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 2.01.02.A.4., which
addresses the Public Use District (P) and Essential Services.
LESSOR reserves the right to terminate this Lease, by providing LESSEE with written notice, if LESSEE shall
violate any provisions of this Lease and not remedy such defaults as required in Article 11 herein. LESSEE shall
terminate this Lease, at any 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 the 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 /100 ($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 13 of this Agreement.
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16D 8
Following the first full year of Annual Rent, the Annual Rent set forth above shall be increased by
five percent or by the percentage increase in the Consumer Price Index (CPI) figure, whichever figure is
higher, over the Rent paid by LESSEE during the preceding year.
The CPI shall be based on the Consumer Price Index for Urban Wage Earners and Clerical
Workers- United States City Average, all Item - Series A (1982 -84 =100), United States Department of Labor
had increased for the preceding year. In the event that such Consumer Price Index (or a successor or
substitute index) is not available, a reliable governmental or other nonpartisan publication, evaluating the
information thereto for use in determining the Consumer Price Index shall be used in lieu of such Consumer
Price Index.
ARTICLE 4. Other Expenses and Charges
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 utility charges applicable to the lights
which are to be relocated from the existing light pole and installed by LESSEE on the free - 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 permit, LESSEE must provide to LESSOR all proposals and plans for
alterations, improvements, changes or additions to the Demised Premises for LESSOR'S written approval, specifying
in writing, and in meaningful detail, the nature and extent of the desired alteration, improvement, change, or addition,
along with the contemplated starting 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 to 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 authorized 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, permits, 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 may or 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. Assignment and Subletting
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 to 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.
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ARTICLE 8. Indemni
•
(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 attributable 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.
ARTICLE 9. Insurance
LESSEE shall provide and maintain general liability and property liability insurance policy(ies), 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
Compensation 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 No /100 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, Naples, Florida, 34112, for approval prior to the commencement of this
Lease Agreement; and shall include a provision requiring not less than ten (10) days prior written notice to Collier
County c/o County Risk Management Department in the event of 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 be 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 written 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 all
applicable rules, laws and regulations, all solid, liquid, semisolid, and gaseous trash and waste and refuse of any
nature whatsoever which accumulates or arises from LESSEE'S use of the Demised Premises. Such trash, waste and
refuse shall be stored in closed containers approved by the LESSOR.
ARTICLE 11. Default by 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, at its
option, terminate this Lease 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 of 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
pursuant to the terms of this Lease.
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(c) Filing of insolvency, reorganization, plan or arrangement of bankruptcy.
(d) Adjudication as bankrupt.
(e) Making of a general assignment of the benefit of creditors.
(f) If LESSEE suffers this Lease to be taken under any writ of execution.
The LESSOR may, at its option, terminate this Lease after providing LESSEE with thirty (30) days written
notice if a lien is tiled 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 accrue simple interest of one and one half (1' /2) 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 by LESSOR
LESSOR shall 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 cure from monies due to LESSOR from LESSEE,
and (ii) any and all other rights 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 PCS, LLC
Attn: AT &T Network Real Estate Administration
Re: Cell Site #313X0051; Cell Site Name: Pine Ridge II
Fixed Asset No: 10127365
12555 Cingular Way, Suite 1300
Alpharetta, GA 30004
With a copy to
New Cingular Wireless PCS, LLC
Attn: Legal Department
Re: Cell Site #313X0051; Cell Site Name: Pine Ridge II
Fixed Asset No: 10127365
1025 Lenox Park Blvd.
5 "' Floor
Atlanta, 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 expiration 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, termination, or early termination of this Lease.
ARTICLE 15. General Provisions 16D 8
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 Collier 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 otherwise related to the rental of the
Demised Premises to the extent applicable under law.
(c) LESSEE agrees to pay all intangible personal property taxes and other taxes, 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 be responsible for, and hold LESSEE harmless from, any
expenses incident to the abatement or compliance with the requirements of any federal, state or local statutory or
regulatory requirements caused 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 from, 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 harmless from, any expense
incident to the abatement or compliance with the requirements of any federal, 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, licensees, invitees, or contractors. As used in this Agreement, "Hazardous Materials"
shall mean any and all polychlorinated byphenyls, petroleum products, asbestos, urea formaldehyde and other
hazardous or toxic materials, wastes or substances, any pollutants, and /or contaminants, or any other similar
substances or materials which are defined or identified as such in or regulated by any federal, state or local laws, 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
abnormalities, 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 allow LESSEE to evaluate the potential for
interference. LESSEE warrants that its use of the 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
twenty -four (24) hours after receipt of notice of interference from LESSEE. In the event any such interference does
not cease within the 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 such 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
within 48 hours after receipt of written notice from LESSOR, LESSEE shall temporarily disconnect the electric power
and shut down its equipment (except for intermittent operation for the purpose of testing, after performing
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 and this Agreement shall terminate as if by expiration; b) Not interfere
6
160 8
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 radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county 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 Tien 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. Governing 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 Term of this Agreement, decides to sell, subdivide or rezone any of the
Premises, all or any part of the Property or Surrounding Property, to a purchaser other than 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 effect a transfer in Rent to the new LESSOR. The provisions of this Paragraph 22 shall in no way limit or impair
the obligations of LESSOR under Paragraph 8 above.
ARTICLE 23. CONDEMNATION
In the event LESSOR receives notification of any condemnation proceedings affecting the Property, LESSOR
will 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 will terminate as of the date the title vests in the condemning authority. The parties will each be
entitled to pursue their own separate awards in the condemnation proceeds, which for 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 harm 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
terminate this Agreement by providing written notice to LESSOR, which termination will be effective as of the date of
such casualty or other harm. Upon such termination, LESSEE will be entitled to collect all 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 temporary facilities will be governed by all of 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 agrees to permit LESSEE to place temporary transmission 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
determination 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 Premises to substantially the same condition as existed before the
casualty or other harm. LESSOR agrees that the Rent shall be abated until the Premises are rebuilt or restored, unless
LESSEE places temporary transmission and reception facilities on the Property.
7
16D
ARTICLE 25. MISCELLANEOUS
(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 not limited to"; (iii)
whenever a party's consent is required under this Agreement, except as otherwise stated in the Agreement or as same
may be duplicative, such consent will not be unreasonably withheld, conditioned or delayed; (iv) exhibits are an
integral part of the Agreement and are incorporated by reference into this Agreement; (v) use of the terms
"termination" or "expiration" are interchangeable; (vi) reference to a default will take into consideration any
applicable notice, grace and cure periods; and (vii) to the extent there is any issue with respect to any alleged,
perceived or actual ambiguity in this Agreement, the ambiguity shall not be resolved on the basis of who drafted the
Agreement.
(g) Estoppel. Either party will, at any time upon twenty (20) business days prior written notice from the
other, execute, acknowledge and deliver to the other a statement in writing (i) certifying that this Agreement is
unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying this
Agreement, as so modified, is in full force and effect) and the date to which the Rent and other charges are paid in
advance, if any, and (ii) acknowledging that there are not, to such party's knowledge, any uncured defaults on the part
of the other party hereunder, or specifying such defaults if any are claimed. Any such statement may be conclusively
relied upon by any prospective purchaser or encumbrance of the Premises. The requested party's failure to deliver
such a statement within such time will be conclusively relied upon by the requesting party that (i) this Agreement is in
full force and effect, without modification except as may be properly represented by the requesting party, (ii) there are
no uncured defaults in either party's performance, and (iii) no more than one month's Rent has been paid in advance.
(h) W -9. LESSOR agrees to provide LESSEE with a completed IRS Form W -9, or its equivalent, upon
execution of this Agreement and at such other times as may be reasonably requested by LESSEE.
(i) No Electronic Signature/No Option. The submission of this Agreement to any party for
examination or consideration does not constitute an offer, reservation of or option for the Premises based on the terms
set forth herein. This Agreement will become effective as a binding Agreement only upon the handwritten legal
execution, acknowledgment and delivery hereof by LESSOR and LESSEE.
0) Severability, If any term or condition of this Agreement is found unenforceable, the remaining terms
and conditions will remain binding upon the parties as though said unenforceable provision were not contained herein.
However, if the invalid, illegal or unenforceable provision materially affects this Agreement then the Agreement may
be terminated by either party on ten (10) business days prior written notice to the other party hereto.
(k) Counterparts. This Agreement may be executed in two (2) or more counterparts, all of which shall
be considered on and the same agreement and shall become effective when one or more counterparts have been signed
by each of the parties. It being understood that all parties need not sign the same counterpart.
IN WITNESS WHEREOF, the parties hereto have hereunder set forth their hands and seals.
AS TO THE LESSOR:
DATED: Ip ' d . Q--o/ d
ATTEST;
DWIGHT E. BROCK, Clerk
Deputy Clerk
A tact as We COMA'
i tanatw* an 10
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
BY: W, C Z
FRED W. COYLE, Chairman
G
AS TO THE LESSEE:
DATED:
WITNESSES:
A
(Signature)
Kathy Porter
(Print Name)
(Signature)
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(Print Name)
Approved as to form and legal sufficiency:
Jennifer B. White, Assistant County Attorney
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT &T Mobility Corporation
By:
Bruce Cook
(Print name)
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