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Agenda 06/08/2010 Item #16D 8 Agenda Item No. 1608 June 8, 2010 Page 1 of 15 EXECUTIVE SUMMARY Recommendation to approve a Ground Lease Agreement for Communications Tower with New Cingular Wireless PCS, LLC, for land at Max Hasse Community Park for a first year's rent income of $40,000. OBJECTIVE: Approve a Ground Lease Agreement for Communications Tower with New Cingular Wireless PCS, LLC, for land at Max Hasse Community Park. CONSIDERATIONS: The County has negotiated a Ground Lease Agreement (Agreement) with New Cingular Wireless PCS, LLC (Cingular), for use of a thirty-five foot by twenty-five foot parcel of land within the Max Hasse Park, as well as approval to replace an existing light pole with a 160' high stealth style communications tower. Cingular will replace the field lights on the tower. Pursuant to Florida Statue 125.35, the County advertised the availability of this property for lease. There were two responses and Cingular was the more superior proposal. A copy of the advertisement and the two responses are on file in Real Property Management. The proposed Agreement provides Cingular with a ten year initial lease term with four separate five year renewals. The first year's annual rent is $40,000 and shall be increased annually by five percent or by the Consumer Price Index, whichever figure is higher, from the previous year's rent. Cingular is required to obtain the required use permits, conditional or otherwise for constructing and operating the tower. If Cingular fails to obtain the necessary permits, the lease will become null and void. The Agreement also includes a non-exclusive access easement and temporary construction easement. At the termination of the Lease, Cingular shall remove all of its equipment and return the property back to its original state. Cingular will provide the top three highest tower locations to the County, without cost, for the County's communications equipment that supports the public safety and emergency management communications systems. Cingular will provide and construct, at no cost to the County, a fenced compound to accommodate an above-ground equipment shelter and diesel generator, which will run independently from Cingular's equipment. Cingular shall also pay for the County's monthly electrical ch'arges for its equipment. FISCAL IMPACT: The annual rent of $40,000 shall be deposited into MSTD General Fund (111), Max Hasse Park (156395), Lease Radio Tower (362110). GROWTH MANAGEMENT IMPACT: There is no impact to the Growth Management Plan. LEGAL CONSIDERATIONS: The proposed Ground Lease Agreement for Communications Tower is legally sufficient for Board action. - JBW RECOMMENDATION: That the Board approves the Ground Lease Agreement for Communications Tower with New Cingular Wireless PCS, LLC, and authorize its Chairman to execute same. PREPARED BY: Michael Dowling, Sr. Property Management Specialist, Real Property Management, Facilities Management Department Agenda Item No. 16D8 June 8, 2010 Page 2 of 15 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Meeting Date: 1608 Recommendation to approve a Ground Lease Agreement for Communication Tower with New Cingular Wireless PCS, LLC, for land at Max Hasse Community Park for a first years rent income of $40,000. 6/8/2010 9:00:00 AM Item Number: Item Summary: Prepared By Michael H. Dowling Administrative Services Division Property Management Specialist, Senior Date Facilities Management 5/5/20103:47:58 PM Approved By Skip Camp, C.F.M. Director - Facilities Management Date Administrative Services Division Facilities Management 5/5/20104:17 PM Approved By Toni A. Matt Manager" Property Acquisition & Const M Date Administrative Services Division Facilities Management 5/10/20108:29 AM Approved By Barry Williams Director - Parks & Recreation Date Public Services Division Parks & Recreation 5/10/201010:34 AM Approved By Tony Ruberto Project Manager Date Public Services Division Parks & Recreation 5/10/2Q10 11:11 AM Approved By Marla Ramsey Administrator - Public Services Date Public Services Division Public Services Division 5111/201011:31 AM Approved By Jennifer White Assistant County Attorney Date County Attorney County Attorney 5/11/20103:25 PM Approved By Jeff Klatzkow County Attorney Date 5/13/20104:21 PM Approved By OMB Coordinator Date County Manager's Office Agenda Item No. 16D8 June 8, 2010 Page 3 of 15 Office of Management & Budget 5/27/20109:16 AM Approved By Sherry Pryor Office of Management & Budget Managementl Budget Analyst, Senior Date Office of Management & Budget 6/1/20108:48 AM Approved By Leo E. Ochs, Jr. County Managers Office County Manager Date County Managers Office 6/1/20109:20 AM - GROUND LEASE AGREEMENT FOR COMMUNICATIONS TOWER Agenda Item No. 16D8 June 8,2010 Lease # Page 4 of: 15 I I THIS GROUND LEASE AGREEMENT FOR COMMUNICA nONS TOWER (the "Agreement") entered into this 8th day ofJune, 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 34 112, hereinafter referred to as "LESSOR." WITNESSETH 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 tlagless 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 ill 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 (J 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 allY provision in this Lease, including Article 7 and Article 17, lLpon 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 COUllty Land Development Code and all applicable ordinances. LESSOR authorizes LESSEE to prepare, execute and tile 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 2.0 I .02.AA., 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 docs 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 A!,'J'eement 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: I Agenda Item No. 16108 June 8.2 10 Page 5 of 15 (c) LESSEE'S securing appropriate approvals tbr LESSEE'S intended use of its Tower on the Demised Premises from the Federal Communications Commission, the Federal Aviation Administrator, and any other federal, stare 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 tenuinate this Agreement through written notice to LESSOR and by restoring the Demised Premises to its condition as ofthe 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 ofthe 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 sllall 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 f'eet.LESSEE is pennitted 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 closc 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 th.e equipment shelter. LESSOR shall be solely responsible for any costs for its equ ipment and installation of its equipment. ARTICLE 2. Term of Lease The initial tenn ofthis Lease Agreement shall be for a term often (10) years (the "Initial Term") commencing upon the date LESSEE starts construction, or within 270 days after this Agreement is executed by LESSOR, whichever oecurs first, hereinafter referred to as the "Commencement Date." This Lease will be automatically renewed for four (4) separate additional terms of five (5) years cach, hereinafter referred to as the "Four (4) Year Renewal Tenus", 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.AA.a.; 2.03.05.A; 2.03.05.A.3; and 2.0\'02.A.4., which addresses the Public Use District (P) and Essential Services. LESSOR reserves the right to tenn.inate 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 Anicle 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 110t3uthori7.ed by this Lcase or is contrary to law or ru les or regulations of any public authority havingjurisdictibn over the Demised Premises. ARTICLE 3. Annual Rent Commencing on tbe 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 0011 00 ($40.000.00) hereinafter referred to as "Annual Rent," that is to be paid in full, for rent for the first year of occupancy, and shall be forwarded to Real Property Management at the address set fbrth in Article 13 of this Agreement. - Agenda Item No. 16D8 June 8, 2CD10 Follov.ing the first full year of Annual Rent, the Annual Rent set forth above shall be increased ~~ge 6 of 15 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. ' Tbe CPI sball be based on the Consumer Price Index for Urban Wage Earners and Clerical Workers-United States City Average, all Item-Series A (1982-84=] 00), 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 cbarges 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 ex.isting 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. ARTICLES. 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 aU proposals and plans for alterations, improvements, cbanges 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 govemmental 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 ex.empt the LESSEE from its duties under Federal, State and local laws. Notwithstanding anything to the contrary, LESSEE may upgrade its installation without the consent of the LESSOR. For the purpose of-this Article, "Upgrade" shall refer to replacements, improvements or enhancements to the installation which would not increase the amount of leased space on the ground and mayor may not otherwise require a permit. ARTICLE 6. Access to Demised Premises LESSEE, its duly authorized agents, contractors. representatives, employees and other LESSEEs shall have the right to enter into and upon tbe Demised Premises twenty-four (24) hours a day, seven (7) days a week at no clI.'tra 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, UPOIl notice to LESSOR, llJongage or grant a security interest in this Lease and tbe 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 aftcr entering into a sublease or sublicense agreement. 3 ARTICLE 8. Indemnity Agenda Item No. 1 08 June 8. 2 10 Page 7 0 15 (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 Noll 00 Cents ($100,000.00) each accident. Such insurance policy(ies) shall list and continuously maintain Collier County as an additional insured thereon. Evidence of such insurance shall be provided to the Collier County Risk Management Department, 3301 East Tamiami Trail, W.I-Iarmon 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 clo 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 IO. 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 arc not kept clean in the opinion of LESSOR, LESSEE will be so advised in writing. If corrective action is not taken within tcn (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 II. 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 noti~ to.;ya.,*te the p!:mised Premises unless the default is fully cured within that thirty (30) day noticc period If the default may not reasonably becured 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. 4 (c) Filing of insolvency, reorganization, plan or arrangement of bankruptcy. Agenda Item No. 1 08 June 8, 2 10 Page 8 0 15 (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, Ilt its option, tenninate this Lease after providing LESSEE with thirty (30) days written notice if a lien is filed against the leasehold interest of the LESSEE, and the lien is not removed within that thirty (30) day notice period, pursuant to the law or otherwise. If LESSEE fails to pay, when due, any rental payment, or any other sum pa;yable 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 (I \1,) percent per month or the highest interest rate thcn allowed by Florida law, whichever is higher, which interest shall be paid by LESSEE to LESSOR. ARTICLE 12. Default bv LESSOR LESSOR shall in no event be charged with default in the performance ofany of its obligations hcrcunder 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 specif)ting wherein LESSOR has failed to perform any such obligations. If LESSOR fails to perform such obligations within a reasonable amount oftime 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 Oi) 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 tlle 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 11313X0051; 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 ff313X0051; Cell Site Name: Pine Rid~e II Fixed Asset No: 10127365 1025 Lenox Park Blvd. Slit Floor Atlanta, GA 303 I 9 LESSOR: Board of County Commissioners cIa Real Property Management Building W 330] Tarniami Trail East, Administration Building Naples, Florida 34] 12 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. 5 ARTICLE J 5. General Provisions Agenda Item No. 1 D8 June 8. 2 10 Page 9 0 15 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 bene-dth the Demised Premises. LESSEE may tenninate this Agreement and LESSEE shall owe no further duties, obligations or liability to LESSOR. LESSOR shall be responsible for, and hold LESSEE hamlless from, any expenses incident to the abatement or compliance with the requirements of any federal, state or local statutory or regulatory requirements r:aused directly or indirectly by the activities of LESSOR and LESSOR'S agents, employees or contractors, or resulting from the prescnce 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 hannless 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 Haz.ardous 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, asbes10s, urea formaldehyde and other hazardous or toxic materials, wastes or substances, any pollutants, andlor contaminants, or any other similar substances or materials which arc defined or identified as such in or regulatcd 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 rclease into the environment and upon exposure, ingestion, inhalation or assimilation, cither directly fTom the environment or directly through food chains will or may reasonably bc anticipated to cause death, disease, behavior abnormalities, cancer or genetic abnonnalities. ARTICLE 17. Interference (a) Where there arc existing radio frcquency user(s) 011 the Property, the LESSOR will providc 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 discloseCl 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 penn it its employees, LESSEEs, licensecs, invitees or agents to use, any pOltion 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 noticc of intelference from LESSEE. In the cvent any such interference does not cease within the aforementioned cure period then the parties ackno\'li1ed.ge 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 Agrcement, to elect to enjoin such interference or to tenninate this Agrcemcnt upon noticc to LESSOR. LESSEE covenants and agrees that LESSEE'S communications equipment its installations, operations and maintenancc 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 takc all steps necessary to correct and eliminate same within a reasonable pcriod of time. If LESSEE is unable to eliminate such interference caused by it within 48 hours after rcceipt of written notice from LESSOR, LESSEE shall temporarily disconncct the electric power and shut down its equipment (exccpt 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 ifsucb interference is not corrected within 30 days after receipt of the written notice, Tenant agrces to remove the Equipment from tbe Communication Tower and this Agreement shall tenninate as if by expiration; b) Not interfere 6 - Agenda Item No. 1 D8 June 8, 2 10 with the maintenance of LESSOR'S operations at the Demised Premises; c) Comply with all applicable rules F./lil:ge 10 of 15 regulations oflhe 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 oftbe 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 infonnation regarding radon and radon testing may be obtained from your county public health unit. ARTICLE 19. Extent of Liens All persons to whom these presents may come are put upon notice that no interest of the LESSOR in the Demised Premises shall not be subject to liens for improvements made by or through the LESSEE, also for improvements made by the LESSEE are specifically prohibited from attaching to or becoming a lien on the interest of the LESSOR in the Demised Premises or any part of either. This notice is given pursuant to the provisions of and in compliance with Section 713.10, Florida Statutes. ARTICLE 20. Effective Date This Lease shall become effective, upon execution by LESSOR. ARTICLE 21. 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 Stich 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 Stich 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 LESSUR 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 sufficicnt, 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 hann. If any part ot the Communication Facility or Property is damaged by casualty or other haml as to render the Premises unsuitable. in LESSEE's sole dctermination. then LESSEE may temlinate this Agreement by providing written notice to LESSOR, which termination will be effe~tive as of the date ~f such casual!:)' or other harm. Upon such temlination, 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 replacementtransmissionfacility at another location; notwithstanding the tennination of the Agreement, such temporary facilities will be governed by all of the tenns and conditions of this Agreement, including Rcnt. 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 FacililV is completed. If LESSOR detennines not to rebuild or restore the Premises, LESSOR will notify LESSEE of ;uch 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 substantiallv the same condition as existed before the casualty or other harm. LESSOR agrees that the Rent shall be abated umil the Premises arc rebuilt or restored, unless LESSEE places temporary transmission and reception facilities on the Property. 7 . . Agenda Item No. 1 D8 June 8, 2 10 Page 11 of 15 ARTICLE 25. MISCELLANEOUS (a) AmendmentIWaiver. 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/Shor1 Form Lease. Either party will, at any time upon fifteen (IS) business days prior ....'fitten 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 conveniencc!1nd rcference onlyand in no way define or limit the construction of the terms and conditions hereof; (ii) use of the term "induding" 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 CD 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 effcct) 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 ofter, 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. (j) Severability. If any term or condition of1his Agreement is found unenforceable, the remaining terms and conditions will remain binding upon the parties as though said unenforceable provision were not containcd 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: ATTEST: DWIGHT E. BROCK. Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY,FLORIDA Deputy Clerk BY: FRED \V. COYLE, Chairman - 8 AS TO THE LESSEE: DA TED:~).(fl~ /7,,l..-tJ /() o WITNES~ (Signature) Kathy Porter (Print Name) -4 r/l/l ",;, J /' / 11"I.,AA"ol.'J{, (Signature) ---r:- I' -/ ' I l --'--_ . I rc~.". . i1t'J'i-C' ,11,; (Print Name) ( Approved as to form and legal sufficiency: ~~' ~))~ Jennifer B. ltc, Assistant County Attomcy New Cingular Wireless PCS, LLC, a Delaware limited liability company By: AT&T MobilitvCorporation By: ~</- -<<- Its: Bruce Cook (Print name) Real Estate & r.:n.ndn Irtinn Mgl' J:-Af-/o 9 Agenda Item No. 16D8 June 8, 2 10 Page 12 of 15 I ~ x 4"6,'1 t ~l ' '/.3 Agenda Item No. 1608 June 8, 2010 Page 13 of 1 5 I ---~""""'-"-' r . l!!: ~ <l!":2i~m' '"C) ,~; ~"~i'" ,-~.~~" f,~~"~ b4l"ll:, ~ ~~~1JF. ~~~~i: z! ~ // ! m I II ~ I \ ---l \ u : II \ ), [ J ' !! :! I!! (If II -Y I! i I I,! (J \. \ ( I : I ~"'" 1 \ 1 1 " I . ~ ~ ) / 1['---- ..-_! \ I I I I Ii I "" ,/I I " I I II'" I I, . 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