Agenda 02/26/2008 Item #16K 5
Agenda 11em No. "16K.S
February 26,2008
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EXECUTIVE SUMMARY
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Recommendation that the Board review and approve an Affidavit and Attorney
Certification, as well as a Consent to certain mortgages made by the Assignee, Light Tower
Wireless, LLC, of a certain lease heretofore entered into by the Board on April 13, 1999 by
and between the County and Acme Towers, Inc.
OBJECTIVE: That the Board revIew and approve an Affidavit and Attorney
Certification setting forth the history of various assignments of a Ground Lease entered into by
the Board on behalf of the County on April 13, 1999 with Aeme Towers, ]ne. ]n addition, that
the Board review and approve a consent to two lease mortgages by Light Tower Wireless, LLC,
the current holder of said lease by assignment.
CONSIDERATIONS: Pursuant to paragraph 6 of the subjeet lease, the leaseholder is able
to assign and/or mortgage its lease. subjeet to the consent of the County. whieh consent will not
be unreasonably withheld. This lease allows the Tenant to eonstruet a communieations tower on
the land. This was done, and the tower has been operating sinee 1999. Thereafter, there was a
series of consolidations and sales of the tenant eompany, and, eoncurrent therewith, assignments
of the lease. Although the County was not infornled of these transactions, none of them,
including the eurrent status, has affeeted the County or its rights under the Lease. In order for
the County's reeords to be brought up to date, an Affidavit and Attorney Certifieation exeeuted
by the attorney for Light Tower Wireless, LLC, the eurrent assignee, was made. Light Tower
Wireless, LLC has entered into two (2) lease mortgages with General Electric Capital
,~ Corporation, and has requcsted the County to conscnt to these mortgagcs.
LEGAL CONSIDERATION: The County Attorney's OtIice has examined the two
mortgages, examined the Af1idavit and the request for eonsent. Conscnting to the assignments,
and eonsenting to the subjeet mortgages in no way obligates the County to either the Tenant or
General Electrie Capital Corporation undcr these mortgages, and does no! diminish the County's
rights and interest in the land involved. Further, the terms and eonditions of the Lease remain in
full foree and effeet.
FISCAL IMPACT: There is no fiseal impact to the County associated with this
Executive Summary.
GROWTH MANAGEMENT IMPACT: There is no growth management associated
with this Executive Summary.
RECOMMENDAION: That the Board review. approve and authorizc the chainnan to sign
both the Affidavit and Attorney Certification as well as the eonsent to the mortgages by and
hetween Light Tower Wireless, LLC and Gcneral Eleetrie Capital Corporation, in duplieate, and
have one copy of eaeh forwarded to the Real Estate Department.
Prepared hy: Robert N. Zaehary, Esq., Assistant County Attorney
Attachments:
-- 1. Ground Lease dated April 13. 1999.
2. Executed Aflidavit and Attorney Certification by Paul Bauer, Esq.
3. Letter requesting consent to two (2) mortgages.
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/<lenda itsrr"1 ~.Jo. 'I :5K5
February 26. 2008
2 of:JJ
COLLIER COUNTY
_.
BOARD OF COUNTY COMM!SSIONERS
Item Number: 161':5
Item Summary: R.ecommendation that the Board review and approve an Affidavit and Attorney Certification
as well as a Consent to certain mortgages made by the Assignee, Light Tower Wireless,
LLC of a certain lease heretofore entered into by the Board on April 13, 1999 by and
between the County and Acme Towers Inc
Meeting Date: 2/26/2006 9.00eO AM
Prepared By
Robert N. Zachary Assistant County Attorney Date
County Attorney County Attorney Office 2119f2Q08 11:05:10 AM
Approved By
David C. Weigel County Attorney Date
County Attorney County Attorney Office 21191200811 :25 AM
Approved By
James V. Mudd County Manager Date
Board of County County Manager's Office
Commissioners 2119120087:44 PM
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file://C:\AgendaTest\ExDort\ 10 I-Februarv%2026.%202008\ 16.%20CONSENT%20AG END... 2/20/2008
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GROUND LEASE AGREEMENT FOR
COMMUNICATION TOWER
Acme Site 10: #97-21 Palm River
THIS GROUND LEASE AGREEMENT ("Lease"), is entered into
effectively on the ~ day of ~ 1999, the ("Commencement Date"),
and between the two (2) parties: Collier County ("OWNER") and Acme Towers
mc, ("TENANT'). The parties agree as follows:
1. The Property: Owner's Property; The Leased Area; And Tenant's
Property.
A. OWNER owns a parcel of land that has the following address: 6231
Arbor Boulevard, Naples, Florida, herein called ("OWNER's Land"), which is
shown on attached Exhibit AI. TENANT installs and leases communieation tower
space to others. TENANT desires to lease land and an access easement thereto,
referred to herein collectively as the LEASED AREA. OWNER's Land is a parcel
of land that is larger ~ area than the LEASED AREA whereby the LEASED
AREA is but a part of OWNER's Land. All personal property brought onto the
LEASED AREA by or on behalf of TENANT is referred to herein as "TENANT's
Property." Any personal property brought onto the LEASED AREA by OWNER
or on behalf of OWNER is referred to herein as "OWNER's Property," Any
property brought onto the LEASED AREA by any third party is referred to herein
as "Third Party Property."
B. OWNER hereby leases the LEASED AREA to TENANT. This Lease
is not a Franchise under any law, rule or regulation. The LEASED AREA
comprises 1000 square feet of land: a 50 foot by 20 foot pareel, plus an access
easement thereto; both of which are as shown on the attached Exhibit A.
C, OWNER and TENANT ("the parties") hereby agree that the LEASED
AREA may be surveyed by a licensed surveyor at TENANT'S costs, which survey
may repJaee Exhibit A and become a part hereof and shall supersede the Exhibit A
in the event of any discrepancy between such survey and the general reference
description of Paragraph l.B., above.
2. Access Easement. OWNER hereby grants to TENANT a non-
exclusive access easement (during the entire life of this lease) for free aecess to the
LEASED AREA seven (7) days a week, twenty-four (24) hours a day, 365 days a
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year. No above-ground structures shall be constructed in that access easement
without the expressed written consent of TEN ANT,
3. Lease Term And Rent.
A, RENT PAYABLE IN MONEY. This lease has an initial term of ten
(10) years from its Commencement Date. The initial annual rent shall be Twenty
FoW' Thousand Dollars ($24,000.000), pro-rated at 1/121h of the annual total per
month. One year's annual rent shall be paid annually in advance beginning on the
Commencement Date, and thereafter not later than each anniversary of the
Commencement Date. Rent shall be paid to OWNER (or as OWNER may
otherwise direct to TENANT from time-to-time in writing at least 30 days before
the respective next rent payment due date), Prior to and until the fIrst day of the
month following commencement of delivery of any of TENANT'S property onto
the LEASED AREA, the Annual Rent shall be One Hundred Dollars ($100.00),
twelve (12) months of which shall be prepaid in advance. Any unearned balance
thereof shall be credited' against TENANT'S first payment of the initial annual
rental. In the event that TENANT has not delivered any of its Property to the
LEASED AREA prior to the first anniversary date of this lease, TENANT may
either terminate this Agreement for whatever reason upon written notice of such
election to Owner, without further obligation or liability to OWNER; or TENANT
must notify OWNER in writing that this Agreement remain in full force and effect
and with such notice tender to the OWNER the increased rent for the second lease
year, If this TENANT decides that this Agreement shall remain in effect, the
$100.00 per month rent shall automatically increase to the specified annual rental
per year, payable in fun for the second lease year not later than the first anniversary
date of this Lease. LATE PAYMENT OF RENT: TENANT shall throughout this
lease pay OWNER a late payment charge equal to five percent (5%) of any
monthly rental payment not paid promptly when due. Any amounts not paid within
thirty (30) days of its due date shall also accrue interest of two percent (2%) per
month or at the highest interest rate then allowed by law, whichever is the higher
rate, which interest shall be paid by TENANT to OWNER. As additional one-time
consideration for the execution of this Lease by OWNER, TENANT will pay
OWNER the sum of ten thousand dollars ($10,000.00) to be used by OWNER to
make improvements to OWNER'S LAND.
B. CONSTRUCTION OF THE TOWER. Time is of the essence
with regard to having the tower being fully constructed and becoming operational.
It is important that the tower contemplated by TENANT be fully constructed and in
operation not later than the end of the second lease year. TENANT shall strive to
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complete construction of the tower within 180 days of receipt of all relevant
government approvals. The OWNER will reasonably cooperate with the TENANT
with regard to such construction provided TENANT is then acting in good faith to
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have the tower fully constructed and operational not later then the end of the
second lease year. However, if the TENANT is not acting in good faith with
regard to having to tower substantially constructed and in operation as of the last
day of the second lease year, the OWNER may summarily terminate this
Agreement without any further obligation whatsoever to the TENANT. If OWNER
feels compelled to terminate this Agreement because of the TENANT'S failure to
show good faith with regard to such required completion of construction and
commencement of operation of the tower, the OWNER may instruct TENANT to
immediately remove all property brought onto OWNER'S LAND by or on behalf
of TENANT,
C. LEASE EXTENSIONS AFTER FIRST TEN LEASE YEARS,
Provided OWNER has not then delivered to TENANT written notice that OWNER
has declared TENANT to be in default of this Lease, this Lease shall be
automatically extended for ten (10) additional years at the end of the initial term
of ten (10) years provided that not more than three hWldred and sixty (360) days
prior to the last day of the tenth (lOth) lease year and not less than one hWldred and
eighty days (180) prior to that date, TENANT advises OWNER in writing of
TENANT's intention ~ to extend the Lease, Failure to supply such written
notice shall operate as an extension of this Lease effective on the last day of the
tenth (lOth) lease year.
D. LEASE EXTENSIONS AFTER THE TWENTIETH YEAR.
Provided OWNER has not delivered to TENANT notice that OWNER has
declared TENANT to be in default, of this Lease, then this Lease may be extended,
if, at least six (6) months prior to the end of the twentieth year (20th), either
OWNER or TENANT has not given the other written notice of its desire that the
term of this Agreement. end upon the expiration of the twentieth (20th) year,
OWNER and TENANT will negotiate in good faith to come to mutual agreement
regarding terms and conditions of that extended lease term, which will become
applicable as of the first day of the twenty-first (21st) lease year. If OWNER
receives effective notice to extend the Lease but the parties cannot mutually agree
to extend the lease on or before the last day of the twenty (20th) lease year, the
lease shall terminate on the last day of the twenty (20th) lease year unless the parties
ilien agree in and commence negotiations in that regard.
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E. CASH DEPOSITS BY TENANT. TENANT shall also at the time of
the payment of the first arulUal rent, deposit with OWNER a refundable rent
security deposit of Twenty Thousand Dollars ($20,000), which deposit may be
used by OWNER in the event TENANT breaches this Lease and any breach results
in OWNER incurring expenses that would have not been incurred but for
TENANT'S breach, including expenses for removal of any of TENANT'S property
(including the tower) from the LEASED AREA. If in time OWNER deems such
deposit, with accrued compounded interest accrued thereon, tD be insufficient to
insure the necessary funds to be available to remove the tower and all other of
TENANT'S property from the LEASED AREA, TENANT shall increase that
deposit as demanded in writing by OWNER, but not to exceed Thirty Thousand
Dollars ($30,000) unless OWNER has good cause to conclude that such projected
aetuaJ costs will exceed the then existing security deposit OWNER shall have alJ
right and title to interest that accrues on all seeurity deposits. If the parties hereto
should enter one or more other tower site leases at one (1) or more other sites, this
deposit may be applied by OWNER to anyone, some, or all of said other sites.
F. AUTOMATIC RENT INCREASES. Commencing with the sixth
- (6th) Jease year, the annual rent for the sixth Jease year through the tenth lease year
shall be the annual rent for the fifth Jease year multiplied by one hundred and
twenty percent (120%), Commencing with the first clay of the eJeventh (J 1 h) lease
year, the alUlUal rent for eleventh Jease year through the fifteenth lease year shall be
the rent for the tenth Jease year multiplied by one hundred and twenty percent
(120%), which should be one hundred and forty-four percent (144%) of the rent for
the fifth lease year. Commencing with the first clay of the sixteenth (16th) lease
year, the annual rent for the sixteenth lease year through the twentieth lease year
shall be one hundred and seventy three (173%) of the rent for the fifth lease year.
If the Lease, by mutuaJ agreement, is extended beyond the twentieth (20th) year, the
existing annual rent for the twentieth (20th) lease year shall not be less than one
hundred and twenty (120%) of the rent for the twentieth Jease year unless then
expressJy agreed otherwise in writing.
4. Use Of The Leased Area and Maximum Height of Structures.
A. TENANT shall use the LEASED AREA to construct, repJace,
maintain, repair, and operate its communications tower and facilities, consisting of
a one hundred and fifty foot wireless monopole communications tower that shall
not exceed a height of ONE HUNDRED AND FIFrY (150) FEET ABOVE
GROUND I"EVEL ("AGL"), exclusive of any and all antennas that will be
installed thereon; antenna support structures andlor related operational facilities
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may be constructed on or near the ground within the LEASED AREA. TENANT
shall license part of the tower and needed LEASED AREA to third parties, and use
the LEASED AREA for any other then lawful uses directly related thereto. No
antenna or other thing installed on the tower or at the LEASED AREA shall exceed
a height of ONE HUNDRRD AND FIFTY FIVE (] 55\ FEET AGL, Subject to
other provisions regarding approvals and teclmical specifications related thereto,
any and all antenna arrays (including those of1bird Parties) may from time-to-time
be modified, added to, or substituted from. Each structure may be configured as
requested by TENANT from time-ta-time, provided TENANT, at its sole expense,
obtains all permits and/or, other approvals required by all applicable jurisdictions,
including OWNER, for each configuration,
B. PLANS REVIEW BY OWNER,
I. OWNER shall review and approve all plans for any and all of the
initial improvements installed within the LEASED AREA, which approval shall
not be unreasonably withheld or umeasonably delayed. Prior to commencing the
initial construction, TENANT shall submit a copy of its plans and specifications to
OWNER for review and approval, which approval shall not be unreasonably
withheld or delayed. No later installation or alteration thereto shall require
approved of plans by OWNER unless OWNER requests to review such plans. Such
plans shall include, if applicable to the improvement, fully dimensional site plans
that are drawn to scale and show: (i) the proposed location of the antennas and
equipment; (ii) any proposed changes to the landscape; (iii) the proposed type and
height and type of fencing; (iv) the proposed color of all structures, including
fencing; and, (v) the proposed type of construction for all structures, including
fencing, and any other relevant details that OWNER may request in that instance,
n. All improvements shall always be constructed in a worlananlike
manner and shall be completed in compliance with all then applicable laws, rules,
ordinances and regulations. Improvements to or within the LEASED AREA (and
within the easement aceess area) shall be at no expense to OWNER. TENANT and
all Licensees shall always maintain all of their improvements in a reasDnable and
funetional condition throughout the life of this Lease to the reasonable satisfaction
of OWNER.
iii. TENANT shall allow OWNER free access to OWNER'S personal
property within the LEASED AREA at all reasonable times that OWNER desires
such access, In the unlikely event that OWNER may be required by law to install
other personal property within the LEASED AREA, OWNER reserves the right to
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do so free of charge provided such property does not materially harm full use of the
tower by TENANT and/or by any third party licensee whether or not then actually
present on the tower or the LEASED AREA.
iv. OWNER has no knowledge of any potential requirement to install any
such property within the LEASED AREA. If the LEASED AREA is in a park,
landscaping and security fencing are of particular concern to OWNER; And
therefore TENANT shall be required to install, repair, and maintain landscaping
and security fencing to the reasonable satisfaction of OWNER.
C. A T LEAST THREE COMMUNICATIONS SYSTEMS,
i. The tower and all other facilities shall be designed and constructed so
as to accommodate at least three (3) separate communications systems. TENANT
may reserve to itself such exclusive right to use such parts of the tower as
TENANT desires, As possible, TENANT will in fact license space on the tower for
installation of antennas by Third Parties and TENANT will concurrently license
space on the ground to each of those Third Parties for location of their equipment
as needed and as related to their antellllas installed or to be installed on the tower.
11, TENANT hereby grants to OWNER the right (by license) to utilize,
free from the payment of any rent or any other charges whatsoever, that thirty foot
(30') wide portion (band) of the tower between 80 feet AGL and thirty (30') feet
above that level. OWNER may advise TENANT at any time(s) of OWNER'S
desire to use such area.
iii. These valuable assets are to be used and shall not be reserved for
remotely possible future uses. TENANT shall grant a non-assignable license to the
remaining area(s) on the' tower, (and such ground space as is then required) to a
Third Party or Parties on such lawful and reasonable ("fair market") rent terms and
conditions as chosen by TENANT, TENANT may require any licensee to pay a
reasonable security deposit plus pre-payment of one year's lieense payments.
However, prior to construction of the tower, TENANT shall not unilaterally
mandate that any licensee must contribute any up-front cash to contribute towards
capital costs or installation costs of the tower. If space that is subject to Owner's
option is licensed to a Third Party and that license comes to an end and that license
is not assigned or otherwise transferred to any other responsible party, that
circumstance shall automatically reinstate OWNER's option to elect to use that
space, whieh option OwNER may then exercise or may wait until there is another
offer from a Third Party to use that space. If OWNER decides to use that space,
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OWNER shall be required to meet the terms of the offer from the Third Party,
except the total amount of rent and/or other payments that OWNER must pay to
TENANT shall never exceed the rent then payable to OWNER by TENANT.
IV, In the event OWNER desires to install equipment on the Tower,
OWNER, at OWNER's expense, shall submit to TENANT the following: (a)
detailed site plans as well as plans and specifications setting forth the proposed
antelUla and all other equipment, as well as all construction, installation, and other
work to be performed on the Tower and LEASED AREA; and (b) a list of all
frequencies then currently or then anticipated to be licensed, assigned or otherwise
granted to OWNER by the FCC,
v, If required by TENANT, OWNER, at OWNER's sole expense, shall
also submit a structural analysis of the Tower prepared by an engineer approved by
TENANT addressing the installation of additional antelUla and other equipment on
the Tower and demonstrating that the installation of such items will not exceed the
wind loading or other relevant capacities of the Tower. OWNER shall not install
any equipment or commence any work on the Tower or the LEASED AREA until
TENANT approves, in writing, the OWNER's plans and specifications,
frequencies, and structural analysis, if any; such approval to be given in
TENANT'S reasonable discretion.
vt. NON-INTERRUPTION AND NON-INTERFERENCE. No activity of
any user or any representative of any user shall interrupt or unreasonably interfere
with any operation of any, other users of the LEASED AREA, including OWNER's
facilities thereof, if any, I
D. THIRD PARTY LICENSEES.
i. Each license (which includes each user of the tower) shall always be
subject to all terms and eonditions of this Lease, and each license shall be subj ect to
review and approval of TENANT, OWNER has the right, but not any duty, to
review each proposed license, Use of the tower and site by OWNER and each
Third Party shall be subject to written approval by TENANT upon such reasDnable
terms and conditions as may be required by TENANT. TENANT makes no
representations to OWNER or to any Third Party that the LEASED AREA, the
tower or/or any other thing will be suitable for OWNER's needs or any needs of
any Third Party, and TENANT has no obligation to modify anything to suit
OWNER's needs or needs of any Third Party unless TENANT agrees to do so in
writing with that user, and only to that extent. Each Licensee shall be solely
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responsible for the cost oflocating and placing its property on the tower and on the
LEASED AREA. Each Licensee shall also be responsible for any liabilities that
may arise from that Licensee's use of any part of the LEASED AREA, including
the tower, TENANT shall promptly notify OWNER in writing of all license
requests which TENANT receives for use of the Tower or any other part of the
LEASED AREA.
ii. Each Third Party, at that Third Party's expense, shall submit to
TENANT the following: (a) detailed site plans and with specifications setting forth
the proposed antennas and other equipment, the height and location of such
antennas and other equipment, and the construction, installation and other work to
be performed on the Tower and on the LEASED AREA; and (b) a list of all
frequencies then currently or then anticipated to be licensed, assigned or otherwise
granted to the Third Party by the FCC. If requested by TENANT, the licensee shall
supply to TENANT a structural analysis of the Tower addressing the installation of
additional antennas and other equipment on the Tower by the Third Party and
demonstrating that the installation of such antennas and equipment will not exceed
the wind loading or any other relevant capacity of the Tower. The Third Party shall
not install any equipment or commence any work on the Tower or the LEASED
AREA until TENANT approves, in writing, the Third Party's plans and
specifications, frequencies, and structural analysis (if any), such approval to be
given in TENANT'S reasonable discretion,
iii. Each Third Party's use of the Tower and LEASED AREA shall be
limited to the antennas and other equipment and frequencies approved and
expressly agreed upon in advance by TENANT,
IV. Each Third Party's installation, use and occupancy of the Tower and
LEASED AREA shall be in continued compliance with all then applicable laws,
regulations and requirements of all federal, state, and local authorities, including
the FCC.
v, THIRD PARTY ASSUMPTION OF RISKS AND INSURANCE
REQUIREMENTS, Each Third Party shall assume all risks in connection with the
installation, operation, maintenance, repair, replacement and removal of its
antennas and all other property located on the LEASED AREA, including the
Tower. Each Third Party shall maintain commercial general liability insurance
insuring against liability for personal injury, death or damage to personal property
arising out of use of the Tower and the LEASED AREA by the TItird Party. Such
insurance shall provide coverage (in an amount of not less than one million dollars
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($1,000,000.00) for bodily injury or death to anyone (1) or more persons and in an
amount not less than one million dollars ($1,000,000.00) for property damage and
shall include a contractual liability endorsement naming TENANT as an additional
insured on such policies. All insurance policies shall be written with insurance
companies qualified to do business in State of Florida and shall always provide for
(require) thirty (30) days written notice to TENANT prior to cancellation.
Certificates of such policies shall be delivered to TENANT prior to the installation
of the Third Party's equipment. Further, each Third Party shall reimburse
TENANT for any damage to the Tower and TENANT'S equipment, and shall be
required to indemnify and hold TENANT hannless from any and all liability,
claims, demands, actions, losses, damages, orders, judgments and any and all costs
and expenses including, without limitation, reasonable attorneys fees and costs,
arising from or incurred in connection with claims for injury to persons or property
caused by the act or omission of such Third Party or its respective agents,
contractors or employees including, without limitation, the use of the Tower, the
LEASED AREA, and third party's equipment, and the breach of any contractual
obligation to OWNER and/or TENANT.
vi. Subject to provisions to the contrary in the specific licensing
agreement, the Third Party's license is assignable or otherwise transferable to a
respDnsible party that assumes the Third Party's duties and obligations.
vii. TENANT and OWNER shall have the right to have a representative
present during the installation of each Third Party's antennas and other equipment.
viii. Each Third Party's installation of antennas and other equipment on the
Tower and the LEASEq AREA shall be performed on dates and at times and
within time frames approved by TENANT in writing and shall not interrupt or
interfere with the operation of TENANT'S communications system or TENANT'S
equipment unless TENANT agrees in writing to such interruption or interference,
E, MAINTENANCE, REPAIR AND REPLACEMENT OF PROPERTY.
I
1. TENANT must maintain, repair and replace the Tower, and all of its
equipment and all of its property to the highest quality construction, repair and
maintenance standards during the entire life of this Lease.
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ii, To protect the integrity of the Tower, all maintenance, repair and/or
replaeement performed on OWNER's Property shall always be done in a
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worlananJike manner consistent with TENANT'S high quality construction
standards.
iii. To protect the integrity of the Tower, each Third Party agrees herein
(and must in its license agreement agree) that all maintenance, repair and/or
replacement performed by it or on its behalf shall always be done in a worlananJike
manner consistent with TENANT'S high quality construction standards.
iv, PLAN REVIEW BY TENANT. Subject to the exceptions noted in the
paragraph (v.) below, prior to the commencement of any other than ordinary
maintenance, repair or replacement work on OWNER's Property, OWNER shall
submit to TENANT for approval plans and specifications of the maintenance,
repair and replacement work to be performed. TENANT Shall have the option to
comment upon such ' plans, specifications and contractor prior to the
commencement of any maintenance, repair or replacement work.
v. ORDINARY MAINTENANCE, REPAIR AND REPLACEMENT.
Notwithstanding any other provision in this Lease, each user of the tower may
conduct its maintenance, ;repair and/or replacement provided same consists of only
ordinary maintenance, replacement or switching of component parts and does not
increase the height of the tower, eause any antenna or other thing to exceed the
maximum height allowed for that antenna or other thing, or add to the tower so as
to increase the maximum total wind loading then being allocated to that user, or
Dtherwise constitute any material change to any site plan, building plan, or other
permitted use. All such activities that do not then require a building permit or any
other fonnal authorization from any other County Department shall be approved by
letter of summary authorization from the Franchise Administration Department or
by the County Administrator or hislher designee. Such (minor) changes by any
user of the tower shall not require any formal amendment or addendum to this
Lease or require any approval by OWNER, TENANT, any Third Party, or from !
Board of County Commissioners. The person who grants such summary approval
shall concurrently deliver a copy each such letter of approval to all other occupants
(users) of the LEASED AREA for informational purposes only.
vi. NOTICE TO TENANT OF NEED TO HA VE PHYSICAL ACCESS TO
mE TOWER OR LEASED AREA, Whenever possible, OWNER shall provide
TENANT with at least forty-eight (48) hours notice prior to any maintenance,
repair, replacement work or any other activity that will require access to the Tower
or to the LEASED AREA. If an emergeney exists (or there is a REASONABLE I
immediate need to exercise police power) in which case notice shall be provided to i
.~-, :
10 ,
--'-' "~,--'-'."- _.~~-~.- _....".~- -,-- --~.._--
._-,-,...
::uri !',JO. i Gf<S
2(~ 20C,3
,3 or 38
- - -
TENANT not later than twenty-four (24) hours after access to the Tower or the
LEASED AREA has occurred, TENANT shall have the right to have a
representative present during any non-emergency maintenance, repair or
replacement by OWNER (or Third Party Licensee) that will require access to the
Tower and/or to the LEASED AREA.
F, INTERFERENCE. Each user of the tower must be able to conduct its
business thereon without unreasonable electrical interference from any other user
of the tower. TENANT agrees to install commWIications equipment of a type and
frequency which will not cause unreasonable interference with OWNER's
equipment at the LEASED AREA. In the event TENANT'S equipment causes
such interference with OWNER's equipment at the LEASED AREA, TENANT
will take all steps necessary to correct and eliminate such interference at
TENANT'S sole cost and expense. OWNER agrees not to allow any future use of
OWNER's equipment or addition and/or modification to any then current use of the
Tower or OWNER's property that causes interference with or the improper
operation of the Tower, TENANT'S equipment, or any of TENANT'S
commWIications signals or any system. If any addition or modification to the
OWNER's equipment causes such interference with TENANT'S equipment or
communications signal and/or system, OWNER, upon notification of such
interference, agrees to promptly remedy such unreasonable interference at
OWNER's expense until such interference is corrected to TENANT'S reasonable
satisfaction. In the event OWNER and TENANT cannot resolve such interference
problems, OWNER and TENANT agree to resolve any interference disputes by
arbitration whieh shall be performed in aecordance with the Rules of the American
Arbitration Association. The arbitration decision/award shall be binding upon
OWNER and upon TENANT and may be entered in any Court having jurisdiction
thereof. OWNER and TENANT agree that the costs associated with any
arbitration shall be borne by TENANT if TENANT is the cause of the interference
or by OWNER if OWNER is the cause of the interference.
G, BARE liCENSE TO PARK VEHICLES. If there is insufficient space
to park same within the LEASED AREA, OWNER hereby grants to TENANT and
each future Third Party lieensee, subject to availability of space for same, a bare
license with no interest coupled thereto to park their respective motor vehicles on
OWNER's Property for short periods of time while the vehicle owner/entity is
constructing, removing, replacing and/or servicing its antenna(s) and/or its
eommunications facilities on the tower Dr otherwise within the LEASED AREA.
H. OWNERSHIP OF TOWER AND OTHER PROPERTY.
1l
_Agenja :tern r'~o. i 6i<5
reb:-uary ::::6.2008
Page 14 of 38
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i. Durin~ The Life Of This Lease; The Tower and related equipment
shall remain the property of TENANT during the entire life of this Lease. Any
other property brought onto the LEASED AREA by or on behalf of TENANT shall
remain the property of TENANT during the life of this Lease and after termination
of this lease. All property brought upon the LEASED AREA by OWNER shall
remain the property of OWNER All property brought upon the LEASED AREA
by any Third Party shall remain the property of that Third Party during the life of
this Lease and after expiration or termination of this Lease except as may be
specified otherwise in the respective controlling license agreement for the subj ect
property of that Third Party licensee.
ii. At Expiration or Temrination of Lease: If the tennination or
expiration of this Lease occurs before an extension into the 20 lease year (See
Section 3 (D), and if OWNER desires to acquire ownership of the tower, Owner
shall pay to TENANT the then depreciated book value of the Tower minus anyoff-
setting claims, if any, that OWNER then has against TENANT. If this lease
expires or is terminated after the Lease is extended into the 20 lease year (per
Section 3 (D), OWNER may elect to direct to TENANT that TENANT shall not
remove the tower from the LEASED AREA, whereby the Tower shall thereby
automatically, at no cost to OWNER, become the sole property of OWNER; Also
TENANT, upon removal of all of its other property from the LEASED AREA,
shall then have no fwther duty or responsibilities with regard to the tower. The
Security deposit, then in possession of OWNER, may be spent to complete any of
the duties of TENANT that are not accomplished in a timely manner and
completely fulfilled by TENANT. When all duties are completed fulfilled by
TENANT, within a timely manner, the Security deposit will be returned to
TENANT.
iii. Third PartY Licensees: Often referred to herein as "Users". Each
license from TENANT to each third party shall specifically require that at the end
of this Lease each Third Party shall immediately remove all of its property from the
LEASED AREA unless: this requirement is then waived in writing by OWNER.
All property removed by TENANT or Third Party shall be removed by or on behalf
Df its then owner without delay and at no cost to OWNER. Removal of all property
by or on behalf of TENANT and each Third Party shall be done promptly and in a
worlananlike manner and the LEASED AREA shall be restored by TENANT, at no
cost to OWNER, to its original condition, only normal wear and tear excepted.
OWNER may, hDwever, then grant to each respective Third Party a license from
12
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----"_. --
r -j CJ. ~I (j ~< ,:,
:::~< ;~(!c:g
:~. of::)3
- -
O\VNER to remain on the Tower and/or the LEASED AREA, in which event the
property. of the Third Party may remain on the tower and/or LEASED AREA in
aecord with such license from OWNER.
5. Termination Of This Lease By TENANT
A. During First Lease Year. Notwithstanding that fact that TENANT
may have brought property onto the LEASED AREA per paragraph 3 of this
Lease, if any of the following events (paragraphs i through iv) occur, TENANT
still will have the right to immediately terminate this Lease by delivering to
OWNER written notice of such termination before three hundred and sixty-five
(365) days of the Commencement Date of this lease.
1. TENANT determines, in its sole discretion, that it will be unable to
obtain aU necessary Governmental Approvals for TENANT'S intended uses of and
improvements to the LEASED AREA as desired by TENANT; or
ii. TENANT'S application for any Governmental Approvals necessary
for TENANT'S use of the LEASED AREA and/or TENANT's Property and
improvements desired by TENANT is denied or becomes commercially
impracticable; or
m. Any Governmental Approvals necessary for TENANT'S use of the
LEASED AREA andlor improvements to the LEASED AREA, whether now or
hereafter desired by TENANT, have been canceled, have expired, have lapsed or
have otherwise been withdrawn, terminated or denied so that TENANT, in its
reasonable judgment, determines that it will no longer be able to use the LEASED
AREA for TENANT'S intended uses; or
iv. The Federal Conununications Commission ("FCC") allocates the
frequencies at which TENANT may operate the subject antennas and related
equipment and may from time to time change such frequencies. Any change of this
nature that, in TENANT'S reasonable judgment, renders its operation of a wireless
conununications facility at the LEASED AREA obsolete; or
v. If TENANT determines that the LEASED AREA has become
unsuitable for TENANT'S operations due to changes in system design or network
design or in the types of equipment used in such operations, or it appears to
TEN.ANT that TENANT'S operations at this site will not be profitable.
13
)\genda Uem f-~o. i oKS
~ebiuaiY 26, 2008
Page 16 of 38
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vi. Any timely termination notice delivered to OWNER by TENANT
shall cause this Lease to expire with the same force and effect as though the date
set forth in such notice were the date originally set as the expiration date of this
Lease and the parties shall make an appropriate adjustment, as of such termination
date, with respect to payments due to the OWNER under this Lease.
vii. OWNER may terminate this' Lease if TENANT does not in good faith
make and continue to pursue all reasonable efforts to obtain all required permits
and construct the planned tower and all of its necessary related facilities. OWNER
may instruct TENANT to remove all of its property and restore the property to its
original condition, all at no cost to OWNER.
B. Subsequent to First Lease Year. Subject to the following
paragraphs (i through iii), TENANT has the right to inunediately terminate this
Lease by giving written notice to OWNER of such termination anytime subsequent
to three hundred and sixty-five (365) days of the Lease's Commencement Date.
i. TENANT deeds the Tower to OWNER free and clear unless OWNER
instructs TENANT to remove the tower, in which event TENANT shall have the
tower removed and have the LEASED AREA restored to its original condition, all
at no cost to OWNER.
ii. OWNER shall retain all prepaid rent for the then applicable lease year
and TENANT shall pay tD OWNER the applicable twelve month's rent for the
entire following lease year (12 months).
iii. TIlls option to terminate does not in anyway bar, prevent or impede
TENANT from selling the tower to a responsible third party, which entity must
become an assignee of this Lease prior to any effective sale of the tower and/or
other property of TENANT.
6. Assignment And Subletting,
A, TENANT shall not assign, transfer or otherwise convey this Lease, in
whole or in part, by operation of law or otherwise, nor mortgage or pledge this
Lease or any of TENANT's property or any part thereof, nor sublet or license any
part of (space upon) the tower or other of TENANT'S Property without the prior
written consent of OWNER, which consent shall not be wrreasonably withheld or
unreasonably delayed, Each entity that becomes a successor in interest (by
14
.-" _.._....__.~~-_._- _._._._w~.____. _ ._____..,."... __m._._
I'::'::-T: ~.:~_L Ll5
:::'\3.2:]:1.3
i7:A ~.:3
- - -
-
purchase of the tower, etc" or by whatever means) of TENANT rights under this
Lease must be a responsible entity that will enable all users of this tower and
LEASED AREA to contmue to conduct their activities on the tower and LEASED
AREA without undue inconvenienee and without additional e"1'Cnse. Any
assignment or other transfer whatsoever not expressly authorized by OWNER in
writing shall be void ab initio.
B. Except to the extent, if any, that is concurrently agreed to in writing by
OWNER (a partial or complete novation), no consent by OWNER to any
assignment, lease, sublease or any other transfer by TENANT (including sale of the
tower, etc.,) to any entity except OWNER., shall relieve TENANT of any obligation
to be performed by TENANT under this Lease, whether arising before or after the
assignment, sublease or any other transfer. The eonsent by OWNER to any
assignment, sublease, or other transfer, shall not relieve TENANT from the
obligation to obtain OWNER's express written eonsent to any other or subsequent
assignment(s), sublease(s) Dr any other transfer(s).
C. 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 TENANT (if TENANT is then a corporation) or any sale or other transfer of a
majority interest (whether of profits, losses, capital, or voting power) or of a
majority of the persons that then comprise the managers of the partnership (if
TENANT is than a partnership), shall not be considered to be an assignment for
purposes of this Section 6.
D. Subjeet to all conditions regarding assigrunents, nothing herein
prevents TENANT from assigning this lease during the fust lease year,
7. Utilities. TENANT shall be respDnsible directly to all serving entities for all
utility services used at the LEASED AREA. OWNER agrees to cooperate with
TENANT in its efforts. to obtain utilities from any location provided by the
OWNER or by any other servicing utility.
8. Indemnification, Insurance, Assumption Of Risk.
A. Subject to Paragraph g,E" TENANT hereby agrees to indemnify and
hold OWNER hann1ess from and against any and all claims ofliability for personal
injury or property damage to the extent that they result from or arise out of: (i) the
acts or omissions of TENANT, its agents and employees in, on or about the
LEASED AREA andfDr the easement access area, excepting however, such claims
15
Agenda item [.Jo. 16K5
February .26,2008
Page ~8 of 38
~
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or damages as may be due to or caused solely by the acts or omissions of OWNER,
its employees or agents; and/or (ii) TENANT'S breach of any term or condition of
this Lease on TENANT'S part to be observed or performed. TENANT shall
defend OWNER if OWNER is sued by any person whomever or entity whatsoever
for alleged electrical of other interference from any antenna or other facility on the
tower or the LEASED AREA, excepting only from interference from OWNER's
facilities, if any, on the tower because OWNER is not and shall not be responsible
in any way for any facilities not owned by OWNER
B. To the extent then allowed by law, and subject to Paragraph 8.E"
OWNER hereby agrees to indemnify and hold TENANT 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: (i) acts or omissions of
OWNER, its agents and employees in, on or about the LEASED AREA and/or
access easement area subsequent to the commencement date of this Lease,
excepting, however (i) such claims or damages as may be due to or caused solely
by the acts or omissions of TENANT, its employees or agents, and/or (ii)
OWNER's breach of any. term or condition of this Lease on OWNER's part to be
- observed or performed.
C. TENANT shall provide OWNER with a certificate of insurance,
issued by an insurance company licensed to do business in the State of Florida
proving that TENANT then carries comprehensive general liability insurance with
limits of liability thereunder of not less that One Million Dollars ($1,000,000.00)
combined single limit for bodily injury and/or property damage together with an
endorsement for contractual liability. Such insurance shall name OWNER as an
additional insured with respect to the LEASED AREA and with respect to
TENANT'S Property. TENANT will provide OWNER with a renewal certificate
within ten (10) business days of OWNER's request for such certificate. Any
insurance required to be provided by TENANT under this Paragraph 8C may be
provided by blanket insurance policy covering the LEASED AREA and
TENANT'S Property lI!1l:l other locations of TENANT, provided sueh blanket
insurance policy complies with all of the other requirements of this Lease with
respect to the type and amount of insurance required. TENANT may also fulfill its
requirements under this Section 8C through a program of self-insurance. If
TENANT elects to self-insure, then TENANT shall furnish OWNER with a letter
stating that said self-insurance program then in effect provides for coverage equal
to or greater than that required of TENANT herein by private insuranee. OWNER
carmot be certain that the specific insurance requirements specified in this Lease
will be adequate with the passage of time; therefore, OWNER reserves the right to
16
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-~~--~-"'- ~------ --'~--"--. _... .._-
:::;,T, :";0. .' .=.' J
~~;~Y:~:]ry l') 2:,' 3
-;(: of 3
- - ~
-
reasonably amend the insurance requirements by issuance of Notice in writing to
TENANT, whereupon receipt oftbat Notice TENANT shall have sixty (60) days in
which to obtain the required additional insurance, unless, for good cause, OWNER
requires that such insurance be acquired in less than sixty (60) days,
D. OWNER shall provide TENANT with a certificate of insurance,
issued by an insurance company licensed to do business in Florida indicating that
OWNER 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. OWNER will provide TENANT with a renewal certificate
within ten (10) business days of TENANT'S request for such certificate,
E. Each such policy described in either paragraph (C) or (0), 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 OWNER or TENANT in colUtection
with any loss and/or damage covered by such policy. The OWNER and TENANT
agree and hereby release each other with respect tD any claim (including a claim for
negligenee) which the other party may have against such party for loss, damage or
destruction of, Dr liability for damages to, the LEASED AREA and/Dr TENANT's
property occurring during the term of this Lease, as same may be extended, and
normally covered under a fire insurance policy with extended coverage.
Notwithstanding anything contained in this Lease to the eontrary, the provisions of
this Paragraph 8.E, shall controL
F. ASSUMPTION OF RISK BY TENANT AND USERS. TENANT and
each third party licensee, their suceessors and assigns, accepts the LEASED AREA
and easement access area "as is," TENANT and each third party licensee, for its
officers, agents, affiliates, contractors, materialmen, suppliers, laborers, and
employees (collectively "TENANT" for the ptuposes of this Section 8) hereby
undertakes and assumes all risk of dangerous conditions, if any, on the LEASED
AREA and on the access, easement area, and hereby agrees to indenmify and hold
hannless OWNER and all other Users against and from any claim asserted or
liability imposed upon OWNER or any other User for personal injury or property
damage to any person (other than from OWNER's gross negligence) arising out of
the TENANT'S or User's installation, operation, maintenance, repair, and/or
condition or use of the LEASED AREA and/or the access easement area, or
TENANT'S failure to comply with any federal, state or local law, ordinance, rule
or regulation.
17
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Agenda item r~o. i 6t(5
Feb:-uary 26. 2008
Paga 20 of 38
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9. TENANT DEFAULTS.
A. The occurrence of anyone or more of the following events shall
constitute an "Event of Default" of this Lease by TENANT:
1. OWNER will not tolerate late payment Df rent in full. The failure by
TENANT to make any payment of rent as and when due. Each rent payment shall
be mailed to OWNER via certified mail, return receipt requested, or by any other
method where TENANT is notified in writing by the carrier that delivery of the
rent to the OWNER has actually occurred. OWNER shall have no duty or
responsibility to notifY TENANT of any late payment or of the fact that the
payment was less than the full amDunt then due to OWNER except as prerequisite
to declaring TENANT to be in default of this Lease, in which case OWNER shall
give TENANT at least ten (10) days notice of intent to declare a default for failure
to pay that rent payment in full and on time,
n. The failure by TENANT to observe or perform any of the covenants
or provisions of this Lease to be observed or performed by TENANT, other than as
specified in Paragraph 9 .A:.(l), above, where such failure shall continue for a period
of forty five (45) days after written notice thereof is received by TENANT from
OWNER; provided, however, that it shall not be deemed an Event of Default by
TENANT if TENANT shall commence to cure such failure within said sixty (60)
day period and thereafter diligently prosecutes such cure to its full completion.
111. If TENANT abandons or vacates the Property, of if any Trustee does
not unconditionally assume this lease pursuant to applicable bankruptcy or other
laws.
iv. To the extent allowed by law, ifTENANT is adjudicated a bankrupt or
makes any assignment for the benefit of creditors, or if TENANT becomes
insolvent, or OWNER otherwise reasonably believes itself to be insecure. If
TENANT becomes insolvent or OWNER reasonably believes itself to be insecure,
the TENANT or Trustee must provide OWNER with adequate assurances of future
performance before this lease can be assigned in bankruptcy or for the benefit of
creditors. Any sueh assignment shall require the assignee to provide OWNER with
a security deposit of one year's rent at the then existing rental rate. The assignee
must be able to immediately continue operation of TENANT's facilities at the
tower site and not lll1dulyinconvenience any then existing operation at the tower or
LEASED AREA. TENANT shall remove its personal property only to the extent
18
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~,--_..+.-- -""--- m~' --
: i.0: Tt i'~o. -:Cf(5
2~3 2003
21 Df 23
- , -
-
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that such removal does not result in any shutdown of any of the other
communications operations on the tower or the LEASED AREA.
B. If there occurs an Event of Default by TENANT, in addition to any
other remedies available to OWNER at law or in equity, OWNER may elect to
terminate this Lease and all rights of TENANT hereunder.
C. If there occurs an Event of Default by TENANT, OWNER shall !!Q1
have the right, prior to the termination of this Lease by a court of competent
jurisdiction, to enter upon any of TENANT's Property and/or remove persons or
property from TENANT's Property, except as needed to accomplish emergency
repairs or emergency exercise of police powers.
D. In the event ofa material default of this Lease by TENANT, OWNER
shall have the right, at its option, in addition to and not exclusive of any other
remedy OWNER may have by this Lease or by operation of law, without any
further demand or notice, to declare this Lease to be tenninated. If then ordered
by OWNER, TENANT shall immediately remove the tower and its property as
specified by OWNER, and TENANT shall then pay to OWNER a sum of money
equal to the total of (i) the amount of unpaid rent, if any, then accrued through the
date of termination; (ii) the amount by which the unpaid rent reserved for the
balance of the term; and (iii) any other amount necessary to compensate OWNER
for all detriment proximately eaused by TENANT'S failure to perform its
obligations under the Lease. In the alternative, OWNER, rather than terminate this
Lease, may relet the tower, for the aecount of TENANT upon such tenus and
conditions as OWNER may deem advisable, and any moneys received from such
reletting shall be applied first to the expenses of such reletting and collection,
including reasonable attorneys' fees, real estate commissions paid, if any, and
thereafter be applied toward payment of all sums due or to become due to OWNER
hereunder, and if a sufficient sum shall not be thus realized to pay such sums and
other charges, TENANT shall pay OWNER, monthly, any deficiency,
notwithstanding that OWNER will have reeeived rental payments from others in
excess of the rental to OWNER stipulated in this Lease in previous or subsequent
months, and OWNER may elect to bring an aetion therefor as such monthly
deficiency shall arise.
E, No re-entry and taking of possession of TENANT's Property by
OWNER shall be construed as an election on OWNER's part to terminate this
Lease, regardless of the extent of renovations and alterations by OWNER, unless a
written notice of such specific intention is given to TENANT by OWNER.
19
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,c,gs:ida ltelTl h!o. 'j 6h.5
February 26,2008
Page 22 of 38
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Notwithstanding any rel~tting without termination, OWNER may at any time
thereafter elect to t:ermirulte this Lease for any such previous breach,
10. Notices. All notices hereunder must be in writing and, unless otherwise
provided herein, shall be deemed validly given if sent by certified mail, return
receipt requested, addressed as follows (or to any other mailing address which the
party to be notified may designate to the other party by such notice) or by overnight
courier service with a concurrent copy each to: (1) Office of the Collier County
Attorney and (2) Collier County's Real Property Management Department. Should
OWNER or TENANT hl1-ve a change of address, the other party shall immediately
be notified as provided in this Paragraph of such change, Unless OWNER
otherwise specifies in writing, rent checks from TENANT shall be sent to the
person listed below to whom notices are sent.
TENANT: Acme Towers Inc.
Attention: J. Kevin Barile
Address: 4830 W. Kermedy Blvd., Suite 340
, Tampa, FlOrida 33609
Telephone Number: : 813,258.2588
With a copy to:
Attention: Wm. Todd Lax, Esq.
Address: 4830 W. Kermedy Blvd., Suite 340
Tampa, Florida 33609
Telephone Number: 813.258.2588
OWNER: Colli~ CDunty
Attention: Franchise Administration Coordinator
Address: 330 I East Tamiami Trail, Administration Building, First Floor
Naples, FL 34112
Telephone No.: (941) 774-8585
11. Sale Or Transfer OfTbe Leased Area By Owner.
OWNER has no plans to sell or otherwise convey away any part of or any
interest in any part of the LEASED AREA to TENANT or any other person or
entity. Should OWNER, at any time during the life of this Lease, sell, lease,
transfer or otherwise convey all or any part of the LEASED AREA, to any
20
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;'''::;:1; 1\'').1 Gi:5
:';'5. 20Ci8
2=: ,:Jf ~;8
- - -
transferee other than TENANT, then such transfer shall be under and, during the
entire term of this Lease, shall be subject to this Lease and all of TENANT'S rights
hereunder and rights of all Third Parties, All of the provision, agreements, rights,
powers, covenants, conditions and obligations contained in this Agreement shall be
binding upon the parties, their respective heirs, successors (by merger,
eonsolidation or otherwise) and assigns, lessees and all other persons acquiring any
interest in the OWNER's PROPERTY and the LEASED AREA, or any portion
thereof, whether by operation of law or in any manner whatsoever and shall inure
to the benefit of the parties and their respective heirs, successors (by merger,
consolidation or otherwise) and assigns. All of the provisions of this Lease shall
constitute covenants running with the land pursuant to Florida law.
12. Hazardous Substances.
A. OWNER has no knowledge that either OWNER or any other person
or entity has used, generated, stored or disposed of, or permitted the use,
generation, storage or disposal of any Hazardous Material (as defined in Paragraph
12.B, below) on, under, about or within any part of OWNER's Property in
violation of any law or regulation. OWNER, TENANT and each USER agree that
they will not use, generate, store or dispose of any Hazardous Material (as defined
in Paragraph 12.B, below) on, under, about or within OWNER's Property in
violation of any applicable law or regulation.
B. OWNER, TENANT AND EACH USER agree 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
contained in Paragraph l2.A. As used in Paragraph 12.A, "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).
13. Condemnation,
A, Whole Condemnation, Because OWNER is a governmental entity and
few conderrmors have authority to conderrm the LEASED AREA, it is unlikely that
the LEASED AREA will ever be condenmed. Nevertheless, if the LEASED
AREA, including without limitation any of TENANT's Property or property of
each USER, shall be taken or condemned, either temporarily or permanently, for
public purposes, or sold to a condemning authority under threat of condemnation to
21
Agsnda Item ~~o. 1 C~(5
FElb~uary ':=:6,2008
Page 24 of :38
- - -
prevent taking, then this lease shall automatically terminate as of the date of the
taking, condemnation, or sale,
B. Partial Condemnation, If any portion of the LEASED 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 OWNER agrees that TENANT may use and/or construct upon an alternative
portion of OWNER's Property that is suitable for TENANT'S purposes, provided
such suitable space is then available. The exact site to which TENANT may
relocate will be determined by OWNER, and it may be any portion of OWNER's
Property (or other property owned or controlled by OWNER), provided TENANT
approves the new site as being suitable for TENANT'S intended uses. OWNER
will designate a site to which TENANT may relocate prior to the taking.
condemnation or sale. In the event no alternative portion of the OWNER's
Property is suitable for TENANT'S purposes, then this Lease shall forthwith
automatically terminate as of the date of the taking, condemnation or sale,
C, Condemnation Award. OWNER shall receive the entire
condemnation award for the land and all other improvements as were paid for by
OWNER TENANT hereby expressly assigns to OWNER any and all right, title
and interests of TENANT now or hereafter arising in and to any such award.
TENANT shall have the right to recover from the condemnor, but not from
OWNER, any compensation as may be awarded to TENANT on account of the
taking of its leasehold interest. moving and relocation expenses. and depreciation to
and removal of personal property and fixtures of TENANT frDm the LEASED
AREA.
14. Liens. TENANT shall keep TENANT's Property free from any liens
arising out of any work performed, materials furnished. or obligations incurred by
or on behalf of TENANT, TENANT shall, within thirty (30) days following the
imposition of any such lien, cause the same to be released of record or otherwise
,
either by payment thereof or by posting of a proper bond in accordance with
Section 713.24, Florida Statutes. No work which OWNER performs or has
performed within the LEASED AREA shall be deemed to be for the use and
benefit of OWNER so that no mechanics or other lien shall be allowed against the
estate of OWNER by reason of OWNER's consent to any such work. OWNER
may, at its election, post notices in the LEASED AREA advising that OWNER it is
not responsible for payment for any such work.
-
22
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.<'~-^._"'- ~,,- -".,,_._"..,,_.__.., -.---......
'~;':;::ll :.j-J. 'S~-:5
ie, 20~)8
r-E;'29 =5 of ~)i3
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15. Fire And Other Casualty Damage To Facilities. If the tower and/or
related facilities is/are tDtally or substantially destroyed by an act or occurrence
beyond the control of TENANT, TENANT may terminate this Lease effective on
the date of such occurrence, or TENANT may elect to rebuild the tower or
construct a substantially similar tower. If TENANT elects to terminate this Lease
under this provision, anY1IDearned rent for the remainder of that lease year shall be
refunded by O\VNER to TENANT provided TENANT has not otherwise breached
this Lease to the monetary detriment of OWNER or to any User. If TENANT
elects to rebuild the tower (or construct a new tower) the annual rental shall be
reduced to $ 100,00 per month for only the ninety (90) days following the damage
date occurrence, at which time the prior then existing annual rent shall
automatically reconunence.
16. Taxes.
A. This is a net-net Lease as to OWNER. TENANT shall be liable for
and shall pay to the applicable taxing authority if billed directly to TENANT, or to
OWNER if billed to OWNER, upon thirty (30) days prior written notice from
OWNER, any and a1\ taxes and assessments levied against any personal property or
trade or other fixtures placed by TENANT in or about the LEASED AREA.
R OWNER's Property is not now subject to any real property taxes,
Nevertheless, TENANT shall pay (as additional rent) real property taxes, if any,
that may be levied against the LEASED AREA and/or against OWNER's Property
as a result of this Lease and/or any improvements constructed on the LEASED
AREA by TENANT and/or any licensees other than OWNER. TENANT shall not
be responsible for any increases in real property taxes which are a result of tax
assessment of OWNER's Property due to improvements made by Owner or any ,
third parties acting under Owner. !
,
C, If any tax, any payment "in lieu of' or "as a substitute for" all or any
portion of any taxes and/or special assessments are impDsed on any of the tangible
and/or intangible property, such tax obligations shall be assumed and be paid by
TENANT except as to any such payments directly attributable to communications
equipment installed on the site by OWNER. This assumption shall not preclude
TENANT from contesting any and all such obligations,
17. Quiet Enjoyment And Non-Interference.
23
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Agenda item f>Jo. ~16K5
February 26, 2008
Page 26 of :";8
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A. OWNER warrants that OWNER is seized of good and sufficient title
to and interest in the LEASED AREA and has adequate authority to enter into and
execute this Lease to TENANT. OWNER knows of no liens, judgments or
impediments of title on the LEASED AREA that would affect this Lease.
OWNER warrants and agrees that TENANT, upon paying the rent and performing
all covenants herein provided, shall peaceably and quietly have and enjoy the
LEASED AREA. It is the opinion of the COlUtty Attorney that the planned uses of
the LEASED AREA, as expressed in this Lease, are allowed and permitted uses of
the LEASED AREA and are not in violation of any Zoning Ordinance or other
Land Use Ordinance that applies tD the LEASED AREA.
B. OWNER hereby grants to TENANT, as a primary inducement to
TENANT'S entering into this Lease, the first priority right to install its antennas
and operate its wireless commlUtications facility on the LEASED AREA. From
time to time OWNER may grant to other entities a lease or lieense to install
commlUtications towers and/or operate wireless communications facilities on
OWNER's Property and/or the right to install antennas in connection with the
operation of such facilities or other communications facilities; provided, however,
that OWNER shall not allow the operation of any such facilities, antennas and/or
equipment by others which unreasonably interfere with the operation of any
antennas and/or equipment in the LEASED AREA as it exists at the time of such
other occupant's installation or as it may be modified at any time during the term of
this Lease, and as the same may be extended, If any such umeasonable
interference occurs, OWNER agrees to cause the elimination of such interference
with operations at the LEASED AREA within a reasonable time after receipt of
TENANT'S notice of such interference and, if necessary, to cause the interfering
party to modifY or cease its operations. If such interference continues for more
than thirty (30) days after TENANT'S notice to OWNER with respect to such
interference, OWNER shall require the party causing the interference to
immediately modifY its use of or immediately cease using such equipment to the
extent that it is then causing such interference,
C, TENANT covenants and agrees that, during the entire term of this
LEASE, no equipment, installation, operation and maintenance at the LEASED
AREA, including same by any third party licensee, shall not interfere with the
operation of the OWNER's 800 .MHz system or OWNER's other transmitted or
received radio signals. In the event there is any such interference, TENANT will
promptly take all steps necessary to correct and eliminate same within a reasonable
period of time. If TENANT is unable to eliminate such interference caused by any
such equipment, installation, operation and/or maintenance at the LEASED AREA,
24
---. ----- ... -------.-- --.-
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~:S';T: t JO. .; ~i! .5
26, 2;=)~i8
27 D! :',8
- -
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TENANT agrees to remove the offending antennas from the LEASED AREA and,
if the interference cannot be corrected to the satisfaction of OWNER, this Lease
may be terminated at the election of OWNER This provision shall be specifically
spelled out in every license from TENANT to each third party licensee.
18, Estoppel Certificates and Subordinations.
A. OWNER, at the request of TENANT, shall provide TENANT with a
certificate stating: (1) whether OWNER has any claim against TENANT for rent
or otherwise and if so, stating with specificity the nature of each such claim; (2)
that OWNER recognizes TENANT'S right to TENANT'S antennas, equipment and
other property at the LEASED AREA; (3) that TENANT then has the right to
remove TENANT'S equipment and other property from the LEASED AREA
provided such removal will allow the remaining users of the tower to make its use
of the tower (not notwithstanding that such property may be considered fixtures
under Florida law); and (4) that OWNER at the time of execution of the Estoppel
Certificate has no legal interest in and affirmatively disclaims any interest to
TENANT'S equipment :fud other property within the LEASED AREA.
B, TENANT, at the request of OWNER, shall provide OWNER with a
certificate stating: (1) that this Lease is unmodified and in full force and effect (or,
if there has been any modification, that the same is in full force and effect as
modified (and shall state the modification(s)); (2) whether or not, to TENANT'S
knowledge, there are then existing any set-offs or defenses against the enforcement
of any of the agreements, terms, covenants or conditions hereof upon the part of
TENANT to be performed or complied with (and, if so, specifying each of the
same); and (3) the dates, if any, to which rent has then been paid in advance; and
(4) any, if in the first lease year, other provisions required to enable TENANT to
obtain a perfected UCC-l to finance the tower and/Dr its equipment
C. ALL OTHER INTERESTS SUBORDINATE. This Lease and all of
TENANT's property at the LEASED AREA shall during its life always be superior
to any mortgage and any other pledge by OWNER and by TENANT. OWNER
and TENANT shall at no cost or expense to the other, execute whatever
subordination agreements and/or other instruments as may be reasonably required
by the other to evidence sueh subordination. It is hereby agreed that a request by
TENANT for a subordination from OWNER to facilitate TENANT'S initial
financing of the tower and/or any or TENANT's initial equipment is a reasonable I
required subordination. TENANT hereby affirms that as of the date of execution ,
of this Lease there is no deed of trust, mortgage, or other any other encumbrance
25
i
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,L:..;enda :t~~rn f'~o. "i 5KS
Febr~:8ry 26, 20D8
Pc)98 28 of 38
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-
affecting this Lease or any of TENANT'S property that may be placed within the
LEASED AREA. OWNER promises that there exists no mortgage, deed of trust,
or other encumbrance or pledge by OWNER that is superior to TENANT'S
Leasehold interests in this LEASE, and that OWNER shall not knowingly enter
into or suffer any such encumbrance to become superior to any of TENANT'S
interests under this Lease. The only possible exception to this promise by OWNER
could be an encumbrance that is not avoidable by OWNER as a matter oflaw.
19. Miscellaneous Provisions,
A. CONTROllING LA W. This Lease and all license agreements and
other agreements related hereto and the performance hereof shall be governed,
inteIpreted, cons1rued and regulated by the laws of the State of Florida. Any
lawsuits that may be brought to enforce any part of this Lease, including any claim
for damages, shall be brought in Collier County,
B. BROKERS, OWNER and TENANT represent to each other that they
have not negotiated with any real estate broker in connection with this Lease.
C, ENTIRE AGREEMENT. This Lease, including attached exln'bits
(which are hereby incoIporated by reference) incoIporates all agreements and
understandings between. OWNER and TENANT, and no verbal agreements or
understanding shall be binding upon either OWNER or TENANT. Any addition,
variation or modification to this Lease shall be ineffective unless made in writing
and signed by both of the parties. All license agreement shall be subject to this
Lease.
D, CONTINUED COMPLIANCE WITH ALL APPLICABLE RULES.
OWNER agrees that the LEASED AREA complies with and during the term of this
Lease shall continue to comply with all building, life/safety, disability and other
laws, codes and regulations of any applicable govenunental or quasi-govenunental
authority, Correcting any such non-compliance shall be accomplished at no cost or
expense of TENANT.
E. SUCCESSORS AND ASSIGNS. This Lease, a1llicenses, and all other
direetly related agreements shall be binding and inure to the benefit of the parties,
their successors and/or assigns. This Lease, and each and every covenant and
condition herein, is intended to benefit the LEASED AREA and shall extend to and
bind all successors and assigns of the respective parties.
i
26
_~H___'_''''~ ...----. -..--..,-..---
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~'G, 2'=)(..'3
::'9 :;f v:i
- - -
F. NON-TECHNICAL READING OF TERMS AND CONDITIONS. All
provisions hereof shall be construed as both covenants and conditions, the same as
if the words importing such covenants and conditions had been used in each
separate paragraph. No distinction between a condition, a term, a promise or a
covenant is intended or shall be implied.
G. NEUTRAL CONSTRUCTION. Each party has had an opportunity to
review and negotiate this Lease and have executed this Lease only after such
review and negotiation, The language of each part of this Lease shall be construed
simply and according to its fair meaning, and this Lease shall not be construed
more strictly in favor or against either party,
H. ATTORNEYS' FEES. If either party institutes any action or
proceeding in eourt to enforce any provision hereof, such as an action for damages
for any alleged breach of any prDvision 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.
I. FAJLURE TO CURE CURABLE BREACH. If either party breaches
this Lease in any manner and fails to commence to eure 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 Lease or provided by law or it may (although it shall not be
obligated to do so) cure ,that breach or perfonn 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.
J. SEVERABILITY. If any portion of this Lease is declared by a court
of competent jurisdiction to be invalid or unenforeeable, then such portion shall be
deemed modified to the extent necessary in such court's opinion to render such
portion enforceable and, as so modified, such portion and the balance of this Lease
shall eontinue in full force and effect.
K. INJUNCTIONS AND EQUITABLE RELIEF. In addition to all other
remedies provided for in this Lease, OWNER and TENANT shall be entitled to
27
-- ____. ....___.._ __ _______.___
!tern I\jO. i Gf<,5
Febn.;ary 26,2008
PaJ8 30 of 38
... - -
-
immediate restraint by injunction (or any other appropriate equitable remedy) of
any violation of any of the covenants, conditions or provision of this Lease.
L. CAPTIONS. The captions of the paragraphs used in this Lease are for
eonvenience of reference :only and shall not affect the interpretation of this Lease,
M. GOVERNMENT APPRO V ALS BY TENANT. OWNER acknowledges
that TENANT'S ability to use the LEASED AREA and TENANT's Property for its
intended purposes is contingent upon TENANT obtaining and maintaining, both
before and after the Commencement Date, all of the certificates, permits, licenses
and other approvals (collectively, "Governmental Approvals") that may be required
by any federal, state and/or local authority, including OWNER, for the foregoing
uses and improvements to the Property desired by TENANT, OWNER agrees to
cooperate with TENANT in TENANT'S efforts to obtain such governmental
Approvals and OWNER shall take no action that would adversely affect
TENANT'S obtaining or maintaining such Governmental approvals.
N. MEMORANDUM OF LEASE AGREEMENT. Concurrently with the
execution of this Lease, OWNER shall execute and deliver to TENANT for
recording a "Memorandum of Lease Agreement" in the form of the attached
Exhibit B. This Lease is a public record under Chapter 119, Florida Statutes.
I
I
I
I
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I
I
I
END
._..
28
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.--..- ." __.___~_4 _ ^- ._,~.._,..~.,- ....__.~._-_..._-_.._._--
2:3,2,')03
~~1 of 28
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IN WITNESS WHEREOF, OWNER and TENANT have duly executed this
Lease as of the day and year first above written (the Commencement Date),
ATTEST: OWNER:
,. .. .:::~'''''\.'.i.~'\\..i ~-'i..~""
~DWlGIUE..BRoCK, CLERK
..... ".; .'......
.'i \l3Y:',~J';';';'~ - ./ By:
-:,;, .'Deputy,Cle P
!. '.,. '. .,.,>' Attest IS to Chlll'llln's
"'1.1 <~-" sl~~ure only.
Approved as to Form
Legal Sufficiency:
r-- W\ ~~
~t County Attorney County's S. S, Tax No.:
TENANT:
ACME TOWERS INC.
A Florida corporation
By:
Print Name: Kevin Barile
Title: President
STATE OF FLORIDA
COUNTY OF HlLLSBOROUGH
The foregoing Lease was acknowledged before me this 25th day of March,
1999, by Kevin Barile, as the President of ANT, who is personally known to
me.
#" "" Milton K. Schmidt Notary Public
.. & Commission II CC771DDl Serial Number: '111 Of') I
1 ~ ExplrcsAlJG.27.2DD2
~ BONDeD THOU
Of 4.TI.Atmc FIONDING co tHe. 1 21 D'2-
" My Commission Expires:
-end-
29
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J\genda :tem I'~o. 16f<5
;=ebr~ary 26, 2008
Page 32 :If 38
- -
- -
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Exhibit "Au
Legal Description
Lt:GAL DESCflJPnON OFPAllE};T l'RACT:
TllACT s-:.4, lHE'\IIN('(AItOS UNIT 3, ACCOllOIIro TO 1H( !lAP OR PLAT IHERtOF'
AS 1lEC00000000IN Pl..(T \looK ~e, PAllES .2. l11RU S, INdUSlVE. of' lIlC I'UtlUC '
. RECOROS Of' ~. ~'N. Fl.0lIIDA.
LE.....L OCSCRIPTION OF leASE PoUt<:a;
A' PARCEL Of' LAHO L '\'ING IN Sl'C110H. 5, TC1'IIN$HIP 4~ SOUTH, RANG< 26 EAST.
CCUJ(Il COVNT'!', Fl.0R1D.... !lCNG A I'ORllON OF l'RACT '$-4' OF Tt1E PLAT OF
THE IIlHEYAROS UNIT'3, AS IlECClRDtD IN Pl.AT SOOK 16, P'~ 2 THROUGH 5,
INCWS1\IE, ,:IF' THE PVSUC RECORDS, OF C~ COUNT'!', flORIO.... SAlO PAI!CEL
WORE PARllCVt.ARl. Y DESCRlBto AS Fcu.OWS:
COUWENClNU AT lIlC NORTH'lltST CORNEll, OF SAlO SECl101/ 5. PI!OC(ED SOUTH
1l9'54'3Q' E~ST ALONG THE IKlIllli UHt THEREOF A OISTANCE OF 60.02 I"EtT 10 THE
NORIHYlEST CORNER OF SAlO ':nlACT 'S-4", SAlO POINT LYING ON THE SOUTH RIGHT
Of' WAY' (R/W) UNE OF VANOtReUlLT BEACH ROAO; IHENCE DEPARTINC SAID R/W UNE
SOUTt1 01'28'00' EAST ALONG THE ~ST LINE OF SAIll TRACT 'S-4' A OISTANCE Of'
35:J.OJ reET: 'IHEHCE DEPARllNG SAID 'M:ST LINE OF SAlD l'RACT '5-4' NORlH 88':;2'00'
EAST A DISTANCE Of' 31,00 FEET TO '1l-It POINT OF BEOlNfoIIIoIG: lHENCE NORlH 88'41'30'
- EAST A OISTAHCl: OF' 20.04 FrET: lliEHCE SOUIH 01'21'22" EAST A OC5TANCf: OF ~o.oo
FEETI IHENCE SOUlH 88'41'30" 'M:ST A OISTIINCE OF 20.00 FEET: THENCE NORTH 01<14'22'
W<ST A OISTANCE OF 50.00 FEET TO THE POINT OF BEGINNING.
CONTAINING AN AREA or 1.000 SOUARE rcrT 1I0RE OR LESS.
I
LLGAl o(SCIlI~'l1ON OF' ACCESS .l.NO UTIUT'!' EASElolENT,
A PARCEL CF. L.l.NO L'1'INC IN SECTION 5, TOWW$HIP 4~ SOUTH. RANer 26 E"'ST.
COLUER COUNT'!', flORIO.... BEING A PORllON OF' TRACT "5-4" OF ll<E PL'" T OF
THE "'NEYARDS IJNIT 3, AS RECORDED. IN IV. T BOOK '6. PACES 2 lHROUC14 S.
lNCLUSlVE, OF' THE P\,/BI.IC IlltCORDS or COWER COUNT'!', FLORIDA, SAID PARCEL
~ORE PAlll1CULAAI.Y O~~ AS rou.ows:
COIol"ENClNC AT THE NORTH'Iot$T CORNER 01' SAID SEcnON 5, ~RoctEO SOVlH
99'5.'30' ",,"ST "'LOHG THE NORlH UNE THEREOF ... OISTAHCE Of' 60.02 ,EET TO IHE
NORtH'IlEST CORNER OF' SAID 1'1U.CT .5-4', SAID POINT ~ '1'INC ON THE SOUtH RIGHT
Of' w...y (RfYI) LINE OF VANOERBUI~T I1tACHROAO; lliENC! CONllNUE SOUlH 6$'50\'30"
E"'ST AlONG SAlO SOVlHIl/W LINE A DISTANCE 01' 53.89 ,crT TO THE POINT OF
eEGlNN'NG; THENCE, COII11NUE SOUTH 89'54':)0" E"'ST ALONG '$AlO UNE A t>l5T.....CC
Of '0,88 'EET; THENCE OEPAl!l1NG SAID .soum Rf.!!. UNE, SOUlW 23""~' 'WEST
A DIST....CE OF 20.45 FrET: 'lHtJolCE SOUTH 64'30 20" 'IotST A OCST....ct: OF 26,39 fUT;
THO/CE SOUTH -<J'OO'4'. \ltST ^ OlSTANCE or 2.2.93 FEET TO A POINT ON '!HE EAST UNE
or IHE ~ST 15 ,ErT or SAID TR"'CT '5-.~ THENCE SOUTH 0''28'00' EAST ALONG SAID
EAST llHE A OtST....CE Of' 345,!l6 'FEET; THENct: NORlH 88"41'30" E"'ST A OfSTANCE or 14.98
'EET; THtNCE SOUTH 0"2.'22' EAST A DISTANCE OF' 10.00 FtET, "'CNCE SOUlH 58""'30"
WEST A OISTANct:: Of' 24.?:l fEET; lHENCE: NORTH 0'''25'00" ~ST. PARAU..EL TO THE \>EST
UHE OF SAID TRACT "S-4', ... DISTANCE Of' 35~.63 F'EtT, THENCE NORTH 43'00'.," EAST A
O'STANCe Of' 26.92 FEET; T><ENcE NQRTH 0."30'20' E;loST A IlISTANCE 01' 24.35 rtET;
Tl4ENCE NORTH 23'19'56- EAST A OISTANct: Of' 12.39 reET TO THE POINT OF BEGINNING.
CONTAINING AN MEA Of' 4,426 SOUARt: raT IIDftE OR LESS.
- Owner Initials:
Aeme Initials:
~_.~,,-- , ~~-- ,---._.~-- -----
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-
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. Exhibit "A" (continued)
Site Sketch
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Ac;melnitials:
-
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p,genca Item [\jo. i 6K5
February 26, 2008
Page :34 of 38
4082735 OR: 4291 PG: 2677 -
.-
L~ RJCORDIII in OlrIClAJ. UCORDI 01 COLLIII toum, fL
10/11/200! It 01:llfl DilGEr I. BIDCl, CLlll
Ucrll m.oo
Reta:
BOllllrCB i DIDT LLf
3llUII ST P 0 B01 15lii
NOTICE TO RECORDEmCISTIlIl OIiIS 0156
nus INSTRUMENT IS ADDITIONAL COLLATERAL FOR A PROMISSORY NOTE EXECUTED
AND DELNERED OUTSIDE OF THE STATE OF FLORIDA WHICH IS SECURED BY
MORTGAGED PROPERTY Born INSIDE AND OUTSIDE THE STATE OF FLORIDA.
PURSUANT TO SECTION 6.22 OF nus MORTGAGE, THE INDEBTEDNESS SECURED BY nus
MORTGAGE AND ALL OF THE OTIIER FLORIDA MORTGAGES IS LIMITED TO AN
AGGREGATE TOTAL OF $8,491,500.00. DOCUMENTARY STAMP TAX AND NONRECURRING
INTANGmLE TAX IS PAID ON THE FLORIDA MORTGAGE OF EVEN DATE RECORDED
CONTEMPORANEOUSLY HEREWITH IN THE PUBLIC RECORDS OF HILLSBOROUGH
COUNTY, FLORIDA WIDCH MORTGAGE CONTAlNS THE REQUIRED ADDITIONAL
INFORMA nON REGARDING THE AMOUNT OF DOCUMENTARY STAMP TAX MID
NONRECURRING INTANGmLE TAX PAID.
, ASSIGNMENT OF
MENT AND
G
DATED: A1; of August 15,2007
COLLATERAL IS OR INCLUDES F1XTIJRES
Drafted by and return
after recording to:
Susan Foxworth
King & Spalding LLP
1180 Peachtree Street, NE
Atlanta, GA 30309-3521
{Climt Files\REA\306080\OOl)I\DQCIOO9686S6.DOC~J
---
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COMMONWEALTH OF MASSACHUSETTS )
)
SS: COUNTY OF MIDDLESEX )
AFFIDAVIT AND ATTORNEY CERTIFICATION
1, Paul C. Bauer, on this 5th day of February, 2008, after first being duly sworn, on oath
state as follows:
1. I am over the age of 2 I years, and if called to testify to the contents of this
Affidavit, 1 am able and competent to do so.
2. I am currently licensed to practice Jaw in the Commonwealth of Massachusetts, in
good standing, and 1 represent Light Tower Wireless LLC.
3. My client, Light Tower Wireless LLC is the assignee of a lease originally
executed by Acme Towers, Inc. and Collier County, Florida.
4, I hereby certify that to the best of my knowledge the following chain of
assignments from Acme Towers, Inc. down to Light Tower Wireless LLC is true and correct:
Land Lease Agreement dated as of April 13, 1999 between Collier County and
Acme Towers, Inc., as evidenced by that certain Memorandum of Lease
recorded in the Public Records of Collier County, Florida on October 26, 1999,
in Offieial Records Book 2605, Page 0106, with Acme Towers, Inc. assigning
all of its assets, including the above-described lease, to Acme Tower Group,
LLC pursuant to that certain Bill of Sale, Assignment and Assumption
Agreement dated as of December 27, 2000, and with Acme Tower Group, LLC
assigning all of its assets, including the above-described lease, to ClearShot
Communications, LLC pursuant to that certain Bill of Sale, Assignment and
Assumption Agreement dated as of June 28, 2001. The membership interests
in ClearShot Communications, LLC were assigned to National Grid Wireless
Holdings, Inc. pursuant to that ccrtain Assignment of Limited Liability
Company Interests, Other Agreements and Acceptance of Assignment and
Agreement to be Bound dated October 2, 2006. ClearShot Communications,
LLC was merged with and into National Grid Communications, Inc. pursuant
to Articles of Merger filed with the Secretary of State of the Commonwealth of
Massachusetts on November 2, 2006. National Grid Communications, Inc.
was converted into Light Tower Wireless, LLC, a Delaware limited liability
company, evidenced by the filing of a Certificate of Conversion from a
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." rebr'J3ry 26. 2008
Page 36 of 38
corporation to a limited liability company filed with the Secretary of State of
the State of Delaware on August 14,2007,
5. I am submitting this Affidavit and Attorney Certification to induce Collier
County, Florida, through its Board of County Commissioners, to execute certain consent
agreements to facilitate loan transactions that Light Tower Wireless, LLC has heretofore made,
FURrHER YOIJR AFFlANT SA YETH NAUGIIT.-@c a
PAUL C. BAUER
I, the undersigned Notary Public in and for the Commonwealth of Massachus s, hereby
certify that one PAUL C. BAUER, who is --+- personally known to me, or has produced the
following identification ,
appeared before me this s.!'::- day of j::p \-, n Y\ ~ ' 2008 and, after first been duly
sworn on oath, acknowledged that he freely and vol 'ly affixed his signature to the above
and foregoing Affidavit and Certification of Attorney.
tf/dJ c~
ARY PUELl
MMONWEAL TH OF
MASSACHUSETTS
Printed Name
Commission Expires:
* MEGHAN E O'NEIL
NOTARY PUBLIC
COMIIONwfAlm OF MASSAcHUSEl'ls
My ConwniSSlon ex_ May 16. 2014
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::2:>'1 i\jo. ~16r<5
;::c:t!n:ary ~\3 2008
37 of::;3
ACCEPTANCE OF AFFIDAVIT AND CERTIFICATION OF ATIOR.l\JEY this _ day of
,2008.
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By
THOMAS HENNING
CHAIRMAN
A TIEST:
DWIGHT E. BROCK
CLERK OF COURTS
By
Deputy Clerk
Approved as to form and
Legal sufficiency:
Robert N. Zachary, Esq.
Assistant County Attorney
I
I
I
Page 3 of3
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F,;'SiK~a Item f'~o.15~:5
F"brcary 26, 2008
Pa;J8 38Jf 38
Bowditch
&Dewey
I\lc~h>>tl E. O'Neil
Direcl h:kpholle: (508) 416-].166
J)ir~ct facsimile. (5(J8"1929~311Ul
[mail' llIoncihli1bowditch,colll
December J O. 2007
VI/\ FACSIMII.E NO, (239) 774-0225
David C. Weigel, Esquire
County Altol'lley
Collier County
3301 E. Tamiumi Trail, 81], Floor
Naples. FL 34112
Re: PC'S Site Agreement (the aLease") by and between Collier County ("Landlord")
and Acme Towers, Inc. predecessor in interest ofLig..ht Tower \Vireless LLC
("Tenant") fur Certain Property in Collier County, Florida (aPremises")
Dear Attorne.y \Veigel:
! mn writing to you in your capacity as the owner of the Premises.
We represent the Tenant with respect to the Lease. Paragraph 6 of the Lease provides that Tenant
will not mortgage the Lease without the written consent of the Owner, which consent shall not be
unreasonably withheld or unreasonubly dcla.ved. The Tenant has entered into the fullowing mortgages:
Leasehold Mortgage from Light Tower Wireless LLC to General Electric Capital Corporation
daled August 15. 2007 and recorded in thc Public Records in Collier County, FL 011 October I ],2007 in
Book 4291, "age 2677 and Leasehold Mortgage from Light Tower Wireless LLC 10 General Electric
Capital Cnrporalion dmed August 15,2007 and rccorded in the Public Rceords orCollier Count)', FL on
October II, 2007 in Book 4291. Page 2700 ("Mortgages').
Pursuant to Section 6, at your earliest convenience, please acknowledge your consent by (1)
executing this letter befm,\ and (2) retllrllblg 'he original to me (II tire abol't! address.
If you have any questions, please contact me us soon as possible at (508) 416-2466, or via email
ut mon~il~'0'bowditch.com. Th::mk you for your prompt attention to this matter.
S i~eere Iy, .7
I . ^'" at
).~" : . j ",
:~i:1 .v ,vJA ' .':: ill
. Meghan E. O'Neil '.'
Paralegal
.._~,..._.~ _.._ '_" _,~_,."._~._,._,u ......
I l.Jereby Consent to the Above Referenced Mortgages ;~S: -:.;" :::~J/.:' "'\::: '..:';i~Y
Name: Tom Henning, CHAIRMAN ATTEST:
Date: DWIGHT E. BROCK, Clerk
--.
It'li\'1i! hks HI A',JObl),')(jOOl,J ),")ND/\',IFITER"l\Ffl44117KIJC)( : II By:
73 I
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