Resolution 1997-255
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RESOLUTION 97 - 2.'i.'L
RESOLUTION OF TilE BOARD OF COUNTY COMMISSIONF.RS,
COLLIER COUNTY, FLORIDA. APPROVING TIIF. LEASE
AGREE~IENT BETWEEN COLLlF.R COVNTY AND PRlMECO
PERSONAL CO~l~l1JNICATIONS, L.P. FOR US,: OF COUNTY-OWNED
PROPF:RTY AT TIIF: VINF:YARDS COMMUNITY PARK.
WHEREAS. PrimcCo Personal Communications, L.P., a Delaware Limited Partnership.
hereinafter rdcITcu to as "pes". desires to lease a portion of the Vineyards Community Park,
located llt (l23 I Arbor Boulevard. Naples, Florida, in Collier County, a political subdivision of
the Slate of Florida ("Collier County"), in order 10 construct and operate onc (1) monopole
communications tower not 10 exceed a height of one hundred lwcnty.fivc (125) fect above
ground level. exclusive of any antennas that may be installed thereon. plus antenna support
sllUcturcs and/or related facilities to be constructed on the ground within the LC:J.scd Arc;}. No
antenna installed on the to\\'er shall exceed a height of one hundred forty (140) feet above ground
level; 311d
WHEREAS, the initial Lease tenn shall be for ten (10) years. with one (1) additional
rcnCW;J) term affive (5) years; and
WH EREAS. the Lease tenllS were advertised pursuant to Section 125.35, Florida
Sta(l/es; and
\VflEREAS, the l30arJ ofCoul1ty Commissioners is sJlisfied that this leased area will be
used for pes's use and is not needed for County purposes.
NOW TIIEREFORE. BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF COl.L1ER COUNTY. Fl.ORIDA. that:
I. The Board of County Commissioners does approve the altachcd Lease
Agreement, Exhibit "A". nel\veen Collier County and PrimcCo Personal Communications. L.P..
a Delaware Limited Partnership.
2. The Chaimlan of the Board of County Commissioners of Collier County, Florida,
is hereby authorized to execute the aHached Lease Agreement all behalf oflhe County.
This Resolution adopted this.21-641ay of '/~ o..y
second and m<ljority vote.
. 1997 after motion.
ATTEST:
DW[(>lIT E BROCK. Ckrk
BOARD OF COUNTY COMMISSIONERS
COl.LlER COUNTY. Fl.ORIDA
BY -J:2aw~4,,(-
, . Deputy Clerk
---, /
' . -- '-;/ ,/
BY fl/:'::;~'7'i ~/?f. --
iIMOTHYL HANCOCK. Chaimlan
Approved as to foml
and legal sufficiency:
;rL~~ c n~A--------
Thomas C. Palmer
Assistant County Attorney
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GROUND LEASE AGREEMENT
Site: 63028 - Vineyards Communily Park (Naples)
THIS GROUND LEASE AGREEMENT ("Lease"), is entered into
effectively on the )J:t;L day of'0"'1- , 1997, the ("Commencement
Date"). and between the two parlies: Collier County ("OWNER") and PrimeCo
Personal Communications, L.P., a Delaware limited partnership ("PCS" or
"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, City of Naples, County of Collier, State of [,Iorida. herein called
("OWNER's Land"), which is shown on attached Exhibit AI. PCS is in the
com!lllll1iC~ltions business and desires to lease land and an access casement thereto,
referred to herein collectively as the LEASED AREA. OWNER's properly is a
parcel of land that is larger in area than the LEASED AREA. The LEASED
AREA is a part of OWNER's Land. All personal property brought onto Ihe
LEASED AREA by or on behalf of PCS is referred to herein as "TENANT's
Property." Any personal property broughl onto the LEASED AREA by OWNER
or on behalf of OWNER is referred to herein as "OWNER's Properly." Any
property brought onto the LEASED AREA by any third parly is referred to herein
as "Third P"rly Properly."
B. OWNER hereby leases the LEASED AREA to PCS. This Lease is
not a Franchise under any law. rule or regulation. The U,ASED AREA comprises
approXimately One Thousand (1,000) square feet of land: a fifty (50) foot by
t\\'cllty (20) root parcel, plus an access casement thereto; both Jrc as shown on the
attached Exhibit A2.
C. OWNER and PCS hereby agree that Ihe LEASED AREA may be
surveyed by a licensed surveyor at PCS. costs, which survey may replace Exhibit
A2 and become a part hereof and shall supersede the first Exhibit A2 in the event
of allY Jiscrepancy between such survey and the description of Paragraph I.B..
above.
2.
Lease:
Access Easement.
OWNER hereby grants to PCS a non-excluslve access casement (during the
entire life of this Lease) for free access to the LEASED AREA seven (7) days a
week, twenty-four (24) hours a day. No above-ground structures shall be
constructed in the access casement.
3. Lease Term And Rent.
A. RENT FA YABLE IN MONEY. This Lease has an initial term of
ti fteen (15) years from tbe Commencement Date. The annual rent shall be
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fourteen Thousand Dollars ($14,000.000), pro-rated at $1,167 per month. The
rent sholl be paid annually in advance, beginning on the Commencement Date,
and thereafter not later than each anniversary date thereof. Rent shall be paid to
OWNER (or as OWNER may otherwise direct from time-to-time in writing at
least 30 tbys bcJ'ore the respectivc Ilext rCllt.paymcnt date). Prior to and until the
first (by of the month 1'oIlowing commenccment of delivcry of any of I'CS'
property onto the LEASED AREA, the Annual Rent shall be One I lundrcd Dollars
(SIOO.OO), twelve (12) months of which shall be prepaid in advancc. Any
unearned balance shall be credited against PCS' first payment of S 14,000.00. In
the unlikely event that PCS has not delivered any property to the LEASED AREA
prior to the first anlliversary date of this lease, PCS may either terminate this
Agrecment upon written notice to Owner, without further obligation or liability; or
may "llow tillS Agreement to remain in full force and effect provided if this
Agreement remain in effect, the SIOO.OO per month rent shall automatically
increase to S 14.000 per year, payable in full not later than the first anniversary
date of this Lease. I'CS shall throughout this lease pay OWNER a late payment
charge equal to five percent (5%) of any payment not paid promptly when due.
Any amounts not paid promptly when due shall also accrue interest of two percent
(2%) pcr month or the highest interest rate then allowed by law, whichever is
higher. WhICh interest shall be paid by pes to OWNER. As additional one-time
consideration for the execution of this Lease by OWNER, PCS \\'i[1 pay OWNER
the sum of ten thousand dollars (SIO,OOO.OO) to be used by OWNER to make
impro,'cments to OWNER'S LAND.
13. CASH DEPOSITS BY TENANT. pes shall also at that time deposit
with OWNER a rcfundable security deposit of t\\'o month's rent (initially
S2.334.00) and a deposit of ten thousand dollars ($10,000) that may be used by
OWNER in the event that pes breaches this Lease and such breach causes
OWNL:R to incur expenses that would have not been incurred but for pes' breach
of tlm lease, especially regarding remonl of any of PCS' property from the
LEASED AREA. If in time OWNER deems sueh SIO,OOO deposit, with accrued
compounded interest thereon, to be insufficient to insure the necessary funds to be
available to reIllove aliaI' PCS' property from the LEASED AREA, PCS shall
increase tbat deposit as demanded in writing by OWNER. OWNER shall have all
right alId title to interest that may accrue on all deposits. If the parties hereto
should elller one or more other leases at one or morc other sites, this deposit Illay
be applied by OWNER to anyone. more, or all of the other sites.
C. LEASE EXTENSIONS. This Lease may be extended by mutual
agreement for a five (5) year extension period at the end of the initial tem1 of
fifteen (15) years provided that, not more than tbree hundr~d and sixty (360) days
prior to the last day of the fifteenth (15''') lease year and not less than one hundred
and eighty ebys (180) prior to that date, PCS advises OWNER in writing ofPCS's
intention to extend the Lease and commence negotiations. failure to supply such
written notice shall operate as a termination of this Lease effective on the last day
of the fifteenth (15th) lease year. If the Lease, by mutual agreement, is extended
beyond the fifteenth (15''') year, the existing base rent for the fIfteenth (IS''') lease
year shall be increased by at least twenty percent (20%) and the mutually agreed
upon ,um shall be the base rent for the sixteenth (16''') lease year through the
twentieth (20''') lease year, unless agreed otherwise. Subject to OWNER'S timely
receipt orslIcl1 written notice afPeS's intention to extend and negotiate, OWNER
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and pes \villncgotiatc in good faith to come to mutual agreement regarding terms
and conditions of the extended lease, which will be applicable as of the first day of
the sixteenth (16'h) lease year. If the parties do not mutually agree to extend the
lease on or before the last day of the fifteenth (15"') lease year, the lease shall
terminate on the last day orthe fifteenth lease year.
D. RENT INCREASES AT END OF FIFTH LEASE ya:( AND AT
END OF TENTH LEASE YEAR. Effectivc on the first day of the ,;x~i1lease year,
the annual rcnt shall be increased as follows: Thc cxisting base rcnt for the fifth
leasc year shall be increased twenty pcrccnt (20%). The resulting figure shall be
the base rent for thc sixth lease ycar through the tenth lease year. Likewise,
cffective un the first day of the elcventh (1I'h) lease year, the an:lual base rent for
the tenth year shall be increased by twenty pcrcent (20%). Thc resulting figure
shall be the base rent fllr the eleventh (11th) through the end of the fifteenth (15'h)
lease YC~H.
4. Use Of The Leased Area,
1\. I'CS shall use the LEASED AREA to construct. remove, replace,
maintain, secure and operate its communications facilitics, consisting of one (I)
monopole communications towcr that shall not exceed a height of one hundred
twenty-live (125) feet above ground level, exclusive of any antennas that may be
installed thereon, plus antenna support structures andlor related facilities to be
constructed on the ground within the LEASED AREA, to license part thereof to
third porties, and for any other lawful uses directly related thereto. No ~ntenna
installed on the tower shall exceed a height of one hundred forty (140) feet above
ground. Subject to other provisions regarding approvals and technical
specifications related thereto, any and all antenna arrays (ineluding those of third
parties) may from time-to-time be modified, added to, or substituted. Each
structure may be configured as requested by PCS from time-to-time, provided
I'CS, at its sole expcnse, obtains all permits and approvals required by all
applicable jurisdictions, including OWNER, for each configuration.
B. PLANS REVIEW BY OWNER. OWNER shall have the right to review
and approve plans for any and all improvements instal1cd within the LEASED
/\RE.^. which approval shall not be unreasonabty withheld or unrcasonably
(klayed. I'nor to commcncing any construction, PCS (and each third party
licensee) shail submit a copy of plans and specifications for all improvements to
O\VNER lor review and approval. No improvement, construction, installation or
alteration sholl be commenced until plans for such have been approvcd by
OWNER and pennits have been issued to authorize such construction. Such plans
shall include. if applicable to the improvement, ful1y dimensional site plans that
arc drown 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 of fencing; (iv) the proposed color of all structures, including fencing; and,
(v) the proposed type of construction for all structurcs, including fencing, and any
other details tltOt OWNER may request. All improvements shall be constructed in
a workmanlike manner and shall be complcted in compliance with all applicable
laws, rules, ordinances and regulations. Improvements to or within the LEASED
AREA (and within the casement access area) shall be at no expcnse to OWNER.
I'CS and all Licensees shall Illaintain 011 of their improvements in a reasonable
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CO!ldl!IOIl throughout the life of Ihis Lease to the reasonable salisbctioll of
OWNER. TENANT shall allow OWNER free access 10 its own personal properly
within the I"EASED AREA at all reasonable times that OWNER desires such
access. In the event thai OWNER may be required by law to install other personal
property within Ihe LEASED AREA, OWNER reserves the right tu do 50 free of
cborfe provided slleh properly docs not materially harm the use of the tower by
pes or by any third parly licensee. OWNER has no knowledge of any potential
requirement to inslall any such property within the LEASED AREA. As the
LEASED AREA is ill a park, landscaping and seeul'ity fencing arc of parlieular
concern to OWNEI~; Iherefore, PCS shall be required to install, repair, and
mJintJ1l1 l;:lI1dscaping ;:md security fencing to the reasonable satisfaction of
OWNFR.
C. 7HREE COMMUNICATIONS SYSTEMS. The tower "nd all olher
f"cilities shall be designed and constructed so as to accommodate at leasl three (3)
separate eommuniealions syslems. PCS shall I,ave the exclusive right to use the
portion of the tower above [10 feel above ground level ("AGL") PCS hereby
grants to OWNER the oplion (by license) to utilize, free from the payment of any
rent, thai portion of the tower belween 90 feet AGL and 110 feet AGL. OWNER
111ay advise PC:S;1t any time(s) of OWNER'S desire to use such area, bul OWNER
shailnol be required to make its decision(s) regarding ils use of thai area except in
response 10 a bona fide offer from a Third Party to PCS to license that space.
OWNER Illay take up to sixty (60) days from the receipt of notification by PCS
Ihal an offer from a Third Party has bcen received, which notice shall describe the
ofCer in detail. to make ils decision. IC OWNER decides Ihat it docs not desire to
use space Cor its own needs or for the use and benefit of any other Users, OWNER
will ,',ot exercise its oplion 10 use Ihat space and that decision shall release that
space 10 PC:S for licensure to thai Third Party. These valuable assets arc to be
used and shail not be reserved for remotely possible future uses. PCS shall license
the f8111Jining area on the tower, (and such ground SPo.cc as is then required) to a
Third Party on such lawful and reasonable lerms and conditions as chosen by PCS.
If the space thai is subjeel to Owner's option is licensed 10 a Third Party and that
license comes to an end, that circumstance shall automatically reinstate OWNER's
option 10 elect 10 usc thai space, which oplion OWNER may the exercise or may
wait I1nlil there is anolher oCfer from a Third Party 1.0 use Ihat space. If OWNER
decides to use Ihal space. OWNER shall be required to meet the lenns of Ihe otTer
from the Third Party, except the Iota I amount of rent aodlor other paymenls that
OWNER must pay to PCS shail never exceed the rent then payable to OWNER by
PCS. In the evenl OWNER desires to instail equipmenl on the Tower, OWNER,
at OWNER's expense, shail submil to PCS the foil owing: (a) detailed sile plans as
well as plans and specificalions setling forth the proposed anlenna and other
equipment and eonslruetion, installalion, and olher work to be performed on the
Tower and LEASED AREA; and (b) a list of ail frequencies currently or
antiCipated to be licensed or assigned to OWNER by the FCC. I f required by PCS,
O\VNER shall also submit a structural analysis of the Tower addressing the
installatinfl of additional antenna and other equipment on the Tower and
demonstrating that the installation of such items will not exceed the load capacity
of the Tower. OWNER shall not install any equipment or commence any work on
the Tower or the LEASED AREA uotil PCS approves, in writing, the OWNER's
plans and specifications. frequencies, and slruetural analysis, if any; such approval
to be given in PCS' reasonable discretion.
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D. rl!!RD PARTY LICENSEES. Each license (which includes each
UseI') shall always be subject to all terms and conditions of this Lease, and each
license shall be subject to review and approval of PCS. OWNER has the right, but
not 2.IlY duty, to review each proposed license. Use of the lower and site by
OWNER and each third party shall be subject 10 written approval by PCS upon
such reasonable terms and conditions as may be required by PCS. PCS makes no
represent.ations 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 the needs of
any third party, and PCS has no obligation to modify any facility to suit
OWNER's needs or the needs of any third party. Each Licensee shall be solely
responSible for the cost of locating and placing its property onto the tower and into
any ancillary structures on site. Each Licensee shall also be responsible for any
liabiliucs that may arise from that Licensce's use of any part of the LEASED
AREA. including the tower. PCS shall promptly notify OWNER in writing of all
license requests which pes receives for use of the Tower or any other part of the
LEASED AREA.
I. The third party, at the third party's expense, shall submit to
PCS thc following: (a) detailed site plans as well as plans and specifications
setting forth the proposed antennas and other cquipment, the hcight and location
of such "ntennas and other equipment, and the construction, installation and other
work to be performcd on the Towcr and LEASED AREA; and (b) a list of all
frcquencies currently or anticipated to be licensed or <lSsigned to the third party by
the FCC. If requested by PCS, the licensee shall supply to pes a structural
analysis of the Tower addressing the installation of additional antennas and othcr
equipment on the Towcr by the third party and demonstrating that thc installation
of such antennas and equipment will not exceed the load capacity of the Tower.
Thc third party shall lOot install any equipment or eommenec any work on the
Towcr or the LEASED AREA until PCS approves, in writing, the third party's site
pions, plans and specificltions, frequencies, and structural analysis (if any), such
approval to be given in PCS' reasonable discretion.
]1. The third party's use of the Towcr shall be limited to the
antennas and other equipment and frequencies approved and expressly agreed
upon in advance by PCS pursuant to paragraph 4. D. i above.
111. The third party's installation, usc 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, ane! local authorities,
including the FCC.
IV. THIRD PARTY ASSUMPTION OF RISKS AND
lli.SllMtlCE REG! IIREMENTS. The third party shall assume all risks in
connection with the instal12.tioll, operation, maintenance, repair, replacement and
removal of thc third party's antennas and all other property located on the
LEASED AREA and the Tower. The 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 by the third party.
Such insurance shall provide coverage (in an amount of not less than one million
dollars ($1.000,000.00) for bodily injury or death to anyone (I) or more persons
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and in an amount not less than one million dollars ($1,000,000.00) for property
dama;;c and shall include a contractual liahility endorsement naming PCS 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 sh,1I1 provide
for thirty (30) days written notice to PCS. prior to cancellation. Certificates of
such policies shall be delivered to PCS prior to the installation of the third party's
equipme"t. Further, the third party shall reimburse PCS for any damage to the
Tower or PCS' equipment, and shall be required to indemnify and hold PCS
harmless from any and all liability, claims, demands, actions, losses, damages,
orders, judgments and any and all costs and expenses including, without
limjlJlion, 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 pJrty or its respective agents, contractors or employees
including. without limitation. the use of the Tower, LEASED AREA or third
party's equipment or the breach of any contractual obligation to OWNER or PCS.
v. The third party's license to use the Tower may be assignable.
VI. PCS shall have the right to have a representative present during
the installation of the third party's antennas and other equipment.
VII The third party's installation of the third party's antennas and
other cquipment on the Tower and the LEASED AREA shall be perfonned on
dates and at times and within time frames approved by PCS in writing and shall
not interrupt or interfere with the operation of PCS' communications system or
PCS' equipment unless PCS agrees to such interruption or interference in writing.
E. MAINTENANCE. REPAIR AND REPLACEMENT OF PROPERTY.
1. PCS shall maintain, repair and replace the Tower, all of its
equipment and all other of its personal property to the highest quality
construction, rcpJir and maintenance standards during the entire life of this
Lease.
II. OWNER shall maintain, repair and replace OWNER's
equipment. In order to protect the integrity of the Tower, OWNER agrees
that any maintenance, repair and/or replacement performed on the
OWNER's Property shall be done in a workmanlike manner consistent with
PCS' high quality constntction standards.
111. EACH THIRD PARTY shall be required herein and by its
respective license agreement to do likewise for all of its Third Party
Property. In order to protect the integrity of the Tower, each third party
must in its license agreement agree that any maintenance, repair and/or
replacement perfomled hy it or on its behalf of its Personal Property shall be
done in a workmanlike manner consistent with PCS' high quality
construction standards.
IV. NON-INTERRUPTION AND NON-INTERFERENCE. Any
maintenance, repair or replacement work perfonned on OWNER's Property
sh,1I1 not interrupt or interfere with the operation of PCS' communications
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system or PCS' equipment unless PCS specifically agrees in writing to such
interruption or interference.
v. PI_AN REVIEW BY pes. Prior to the commencement of any
mcintenance, repair or replacement work on OWNER's Property, OWNER
shall submit to PCS for approval plans and specifications of the
maintenance, repair and replacement work to be perfolllled. PCS shall have
the option to comment upon such plans, specifications and contractor prior
to the commencement of any maintcn~lOCC, repair or replacement work, all
at the Property Owners' expense.
VI. NOTICE 7'0 PCS. OWNER shall provide PCS with at least
fOrly-eight (48) hours notice prior to any maintenance, repair or replacement
work that will require access to the Tower structure or LEASED AREA,
unless an emergency exists in which case notice shall be provided to PCS
not later than twenty-four (24) hours after access to the Tower structure or
LEI\SE AREA has occurred. PCS 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 I.he Tower or to the LEASED AREA, but not the tower.
F. INTERFERENCE. PCS agrees to install communications equipment
of d type and frequency which will not cause interference with OWNER's
equipment at the LEASED AREA. In the event PCS' equipment causes
interference with OWNER's equipment at the LEASED AREA, PCS will take all
steps necessary to correct and eliminate such interference at pes' sole cost and
expense. OWNER agrees not to allow any future use of OWNER's equipment or
addition and/or modification to any current use of the Tower or OWNER's
properly that may cause interference with or the improper operation of the Tower,
PCS' equipment, or pCS' comn,unications signal or system. In the event that any
addition or modification to the OWNER's equipment causes interference with
PCS' equipment or communications signal anellor system, OWNER, upon
notification of such interference, agrees to promptly remedy such interference at
OWNER's expcnse until sLlch interference is corrected to pes' sole and
reasonable satisfaction. In the event OWNER and pes cannot resolve such
interference problems, OWNER and PCS agree to resolve any interference
disputes by arbitration which shall be perfollTIed in accordance with the Rules of
the American Arbitration Association. The arbitration decision/award shall he
binding upon OWNER and upon pes and may be entered in any court having
jurisdiction thereof. OWNER and PCS agree that the costs associated with any
arbitration shall be borne by PCS if pCS 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 pes and each
future third party licensee, 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 vchicle owner/entity is
constructing, removing, replacing und/or servicing its antenna(s) and/or its
communications facilities within the LEASED AREA.
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II OWNERSHIP OF TOWER AND OTHER PROPERTY.
(I) [)Ilrin~ The 1.ife Of This 1.ease: The Tower shall remain the property
of PCS during the life of this Lease. Any other property brought onto the
LEASED AREA by or on behalf of PCS shall remain the property of PCS 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 subject property of that third party licensee.
(2) lit Expiration or Termination of Lease: Upon expiration or
temlination of this Agreement, PCS shall, at no cost to OWNER, remove the
tower and all of its other property from the LEASED AREA unless OWNER
directs otherwise to PCS. If the temlination or expiration of this Lease occurs
before an extension into the eleventh lease year (See Section 3 (C)), and if
OWNER elects to acquire ownership of the tower, Owner must pay to PCS the
then depreciated book value of the Tower. If this lease expires or is terminated
after the Lease is extended into the eleventh lease year per Section 3 (C), OWNER
may direct to pes that PCS shall not remove the tower from the LEASED AREA,
whereby Tower shall thereby automatically, at no cost to OWNER, become the
sole property of OWNER, and PCS, upon removal of all of its other property from
the LEASED AREA, shall then have no further duty or responsibilities with
regard to the tower.
(3) Third Partv Licensees: Each license from PCS to each third party
shall specifically require that at the end of this Lease each third party shall
immediately remove a[1 of its property from the LEASED AREA. All property
removed by PCS or third party shaJI be removed by or on behalf of its then owner
without delay and at no cost to OWNER. Removal of all property by or on behalf
of PeS and each third party licensee shall be done in a workmanlike manner and
the LEASED AREA shall be restored by PCS to its original condition, normal
wear and tear excepted. OWNER may, howcver, then grant to a respective third
party a liccnse to rcmain on the Towcr and/or the LEASED AREA. in which cvent
the property of the third party licensee may remo;n in accord with such license.
(4) Ilill of Sale: In the event that OWNER desires to acquire ownership
of the tower, for record keeping purposes and County property inventory control
purposes, PCS will, at no cost to OWNER, convey to OWNER a Bill of Sale for
the Tower. Absent a controlling law to the contrary, failure to convey the Bill of
Sale shall not, however, affect the total automatic transfer of title to the Tower to
OWNER.
5, Early Termination Of This Lease By J'CS.
If any of the following events (paragraphs A through E) occur, PCS has the
right to immediately temlinate this Lease by giving written notice to OWNER of
such termination before three hundred and sixty-five (365) days of the
Commencement Date.
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/I pcs dctert1cincs, in its sole discretion, that il will be "lOJble to obtoin
all necessary Government"; Approvals lor PCS' intended uses of and
'.J\'" ,TICll\:S to th~ LEAS;'!' AREA as lic:.:rcd b:" ~'~3; or
B. PCS' applicatJon for any Governmental Approvals necessary for
PCS' use of the LEASED AREA andJor TENANT's Properly and improvements
desired by PCS is denied; or
C. Any Governmental Approvals necessary for PCS' use of the
LEASED AREA and/or improvements to the LEASED AREA, whether now or
hereafter desired by PCS, have been canceled, have expired, have lapsed ar have
atherwise been withdrawn, terminated ar denied so that pes, in its reasanable
judgment, determines that it will no longer be able 10 use the LEASED AREA for
PCS' intended uses; or
D. The Federal Communications Commission ("FCC") allocates the
frequencies at which PCS may operate the subject antennas and related equipment
and may from time to time change such frequencies. Any change af this nature
that, in PCS' reasonable judgment, renders its operation of a wireless
communications facility at the LEASED AREA obsolete; or
E. If PCS determines that the LEASED AREA has become unsuitable
for pes' operations due to changes in system design or network design or in the
types of equipmenl used in such operations, or PCS' operations at the Properly
become unprofitable.
f'. Any timely ternlination notice delivered to OWNER by PCS 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 ail appropriate adjustment, os of such ternlination date,
with respect 10 payments due to the OWNER under this Lease.
G. OWNER shall have at its sole discretion the option of terminating
this LEASE if PCS conclusively and finally loscs its license from the f'CC to
provide PCS/cellular scrvices for any reason, including, and not limited to, non-
renewal, cancellation, or expiration of the license. I f the loss of the license is not
due to any fault of PCS, and OWNER desires to own the tower and/or other
facilities, OWNER sholl pay 10 PCS the then depreciated book value of the tower
(and any other facilities that may be conveyed by agreement between PCS and to
OWNER). If the loss of that license is due to the fault of PCS, including non-
feasance, such loss of the license shall, at OWNER's c1ection, forfeit the tower to
OWNER. OWNER may terminate this Lease if pes docs not in good faith make
and continue to pursue all reasonable efforts to obtain all required permits and
construct the planned tower and all necessary related facilities.
6, Assignment And Subletting.
A. Except to a "Partner Company," "Affiliate," "Subsidiary" or a
Subsidiary or Affiliate of a Partner Company of PCS (as defined below), PCS
shall not assign this Lease, or allow it to be assigned, in whole or in part, by
operation of law or otherwise. PCS shall not mortgage or pledge this Lease or any
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of TENANT's property, or any part thereof, nor sublet any part of the tower or
other of TENANT'S Property without the prior written consent of OWNER, which
consent shall not be unreasonably withheld or unrcasonably delayed. Any
assignment or other transfer not authorized by OWNER shall be void ab iI/ilia.
B. NYNEX, Bell Atlantic, AirTouch Communications, and U.S. West
arc each currently a Partner Company of PCS. As used in this Lease, an Affiliate
of any entity is any corporation fifty-one percent (51 %) or more of the stock of
which is owned, directly or indirectly, by such entity. A Subsidiary of an entity is
any corporation eighty perccnt (80%) or marc of which is owncd by such cntity.
C. No consent by OWNER to any assignment, lease, subleasc or any
other transfer by PCS shall relieve PCS of any obligation to be performed by PCS
under this Lease, whether arising before or aftcr thc assignment, sublease or othcr
transfer. Thc consent by OWNER to any assignment, sublease, or other transfer,
shall not relieve PCS from the obligation to obtain OWNER's express written
consent to any other or subsequent assignment(s), sublcase(s) or other transfer(s).
It is contemplated by OWNER and PCS that PCS will license space on the tower
for installation of antennas by third parties, and that PCS may license space on the
ground to third parties for location of their equipment related to their antennas
installed on the tower.
D. Any sale or other transfer, including by consolidation, merger or
reorganization, of a majority of the voting stock of PCS (if PCS is then a
corporation) or any sale or other transfer of a majority interest (whether of profits,
losses, capital, or voting power) or a majority of the persons composing the
managers of the partnership (if PCS is then a partnership), shall not be an
assignment for purposes ufthis Section 6.
7, Utilities.
PCS shall be responsible directly to all serving entities for all utility
services used at the LEASED AREA. OWNER agrees to cooperate with PCS 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 8.E., pes hereby agrees to indemnify and hold
OWNER harmless from and against any and all claims of liability for personal
injury or property damage to the extent that they result from or arise out of: (i) the
acts or omissions of PCS, its agents and employees in, on or about the LEASED
AREA and/or the casement access area, excepting however, such claims or
damages as may be due to or caused solely by the acts or omissions of OWNER,
its employees or agents; and/or (ii) PCS' breach of any term or condition of this
Lease on PCS' part to be observed or perfonned.
B. To the extent then allowed by law, and subject to Paragraph 8.E.,
OWNER hereby agrees to indemni fy and hold PCS hannless 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) the acts or omissions of OWNER, its
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agents and employees in, on or about the LEASED AREA andJor access casement
area, e,eepting, however, such claims or damages as may be due to or caused
solely by the acts of PCS, 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. PCS shall provide OWNER with a eertincate of insurance, issued by
an insurance company liecnsed to do business in the State of Florida pro\'ing that
PCS then carries comprehensive general liability insurance with limits of liability
thereunder of not less that One Million Dollars ($ 1,000,000.00) eomhined 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 PCS' Propcny. res will
provide OWNER with a renewal eertineate within ten (10) husiness illys of
OWNER's request for such eerlineate. Any insurance required to be pro\'ided by
PCS under this Paragraph 8 may be provided by blanket insurance policy covering
the LEASED AREA and PCS' Propertyaru.l other locations of PCS, pro\'ided such
blanket insurance policy complies with all of the other requirements of this Lease
with respect to the type and amount ofinsuranec required. PCS may also fulnll its
requirements under this Section 8 through a program of self-insurance. If PCS
clects to self-insure, then PCS 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 PCS herein by private insurance. OWNER cannot be certain
that the specific insurance requircments specified in this Lease will be adequate
with the passage of time; therefore, OWNER recerves the right to reasonably
amend the insurance requirements by issuance of Notice in writing to PCS,
whereupon receipt of that Notice PCS 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 PCS 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 (S I ,000,000.00) combined single limit for
bodily injury and/or property damage, together with an endorsement for
contractual liability. OWNER will provide PCS with a renewal certificate within
ten (10) business days ofPCS' request for such certificate.
E. Each such policy described in either paragraph (C) or (D), 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 PCS in
connection with any loss and/or damage covered by such policy. The OWNER
and pes agree and hereby release each other with respect to any claim (including
a claim for negligence) which the other party may have against such party for loss,
damage or destruction of, or liability for damages to, the LEASED AREA and/or
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 contrary, Ihe
provisions of this Paragraph 8.E. shall control.
tt
F. ASSUMPTION OF RISK BY pes. PCS accepts the LEASED AREA
"as is." PCS, for its officers, agents, affiliates, contractors, materialmcn, suppliers,
laborers, and employees (collectively "PCS" for the purposes of this Section 8)
hereby undertakes and assumes all risk of dangerous conditions, if any, on thc
LEASED AREA and on thc access eascmcnt area. and hereby agrees to indcmnify
and hold harmlcss OWNER and all Uscrs against and from any claim asserted or
liability imposcd upon OWNER or any Uscr for pcrsonal injury or property
damage to any person (other than from OWNER's gross negligence) arising out of
the PCS' installation, operation, maintenance, condition or use of the LEASED
AREA anellor the access easement area, or PC:S' failure to comply with any
federal, state or local law. ordinance. rule or regulation,
9, pes Defaults.
A. The occurrence of anyone or more of the following events shall
constitute an "Event ofDefau!t" or this Lease by PC:S:
(I) The failure by PCS 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 PCS is notified in writing by the
carricr that dcliv'cry of the rcnt to the OWNER has actually occurred. OWNER
shall have no duty or rcsponsibility to notify PCS of any late payment or of the
fact that the payment was less than the full amount then due to OWNER except as
prerequisite to declaring PCS to be in default of this Lease.
(2) The failure by PCS to observe or perfoml any of the covenants
or provisions of this Lease to be observed or performed by PCS, other than as
specified in Paragraph 9.A. (1), where such failure shall continue for a period of
thirty (30) days after written notice thereof is received by PCS from OWNER;
provided, however, that it shall not be deemed an Event of Default by PCS if PCS
shall commence to cure such failure within said thirty (30) day period and
thereafter diligently prosecutes such cure to full completion.
(3) If PCS abandons or vacates the Property.
(4) To the extent allowed by law, ifPCS is adjudicated as bankrupt
or makes any assignment for the benefit of creditors; or if PCS becomes insolvent
or OWNER reasonably believes itself to be insecure.
B. If there occurs an Event of Default by PCS, 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 PCS hereunder.
c:. If there occurs an Event of Default by PCS, O\VNER shallnu.t have
the right, prior to the termination of this Lease by a court of competent jurisdiction,
to enter upon any of TENANT's Property anellor remove persons or property from
TENANT's Property, except as needed to accomplish emergency repairs.
D. In the event of a material default of this Lease by PCS, 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
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demand or notice, to either (a) declare this Lease at an end. If ordered by
OWNER, PCS shall immediately remove the tower and its property ~,s specified
by OWNER, and PCS 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 caused by PCS' failure to perform its obligations under the
Lease; or (b) without terminating this Lease, OWNER may relet the tower, for the
account of PCS upon such ternlS 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 eslate
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 slleh sums and other charges, PCS shall pay OWNER,
monthly. any deficiency, notwithstanding that OWNER will have received rental
payments in excess of the rental to OWNER stipulated in this Lease in previous or
subsequent 111onths, and OWNER may elect to bring an action 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 PCS by OWNER.
Notwithstanding any reletting without ternlination, OWNER may at any lime
thereafter elect to terminate this Lease for any such previous breach.
10, Notices.
All notices hereunder must be in writing and, unless otherwise provider!
herein, shall be deemed validly given if sent by certified mail, retum 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. Should OWNER or PCS have a change of address, the other party
shall immediately be notified as provided in this Paragraph of such change.
Unless OWNER otherwise specifics in writing, rent checks from PCS shall be sent
to the person listed below to whom notices arc sent.
pes:
PRIMECO PERSONAL COMMUNICATIONS, L.P.
777 Yamato Road, Suite 600
Boca Raton, Florida 33431
Attn.: Property Manager
Telephone Number: (56 I) 995-5500
With a copy to: Edward Wholl, Esquire
Address: 8875 Hidden River Parkway, Suite, 350, Tampa, FL 33637
Attention: Legal Department
Telephone Number: (813) 615-4840
OWNER:
Attention:
Collier County
Franchise Administration Coordinator
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330 I East Tamiami Trail, Administration Building
First Floor
Naples,FL
Telephone Number:
Address:
34112
(941) 774-8577
With a concurrent copy eoch to: (I) Office of the Collier County Attorney and (2)
Collier County's Reo' Property Monagement Deportment.
1 I. Sale Or Transfer Of The Leased Area By Owner.
The LEASED AREA is in a park, OWNER has no plans to sell or
otherwise convey away any part of or any interest in any part of the LEASED
AREA to PCS or any other person or entity. Should OWNER, at any time during
the life of this Lease, sell, leose, transfer or otherwise convey oil or ony port of the
LEASED AREA, to any trnnsferee other than PCS, then such transfer sholl be
under and, during the entire term of this Leose, shall be subject to this Lease and
all of PCS' rights hereunder.
\2, Hazardous Suustanees.
A. OWNER hos no knowledge that neither OWNER nor ony other
person or entity has used, gencrnted, stored or disposed of, or permitted the use,
generation, storoge or disposol of ony Hozordous Moterial (os defined in Porogroph
12.B, uelow) on, under, about or within any part of OWNER's Property in
violation of "ny low or regulotion. OWNER ond PCS each ogree that they will not
use, generote, store or dispose of ony Hazordous Moter;,,1 (os defined in Pnrogrnph
12.8, below) on, under, obout or within OWNER's Property in violation of ony
opplieoble law or regulotion.
B. OWNER ond pes each agree to defend and indemnify the other and
the other's portners , affiliotes, agents and employees ogainst any and all losses,
liobilities, c!oims andJor costs (including reasonable attorneys' fees ond coslS)
arising from ony breach of any warranty or agreement eontoined in Poragraph
12.A. As used in Pnragroph 12.A, "Hozordous W.oteriol" sholl mean any
substonce, chemicol or waste identified as hazardous, toxic or dongerous in any
applicoble federal, state or local law or regulation (including petroleum ond
osbestos).
13, Condemnation.
A. Whole Condell/nation. 8ecouse OWNER is 0 governmental entity
and few condemnors have authority to condemn the LEASED AREA, it is
unlikely that the LEASED AREA will ever be condemned, If the LEASED
AREA, including without limitation ony of TENANT's Property, shall be taken or
condemned, either temporarily or permonently, for public purposes, or sold to a
condemning authority under threat of condemnation to prevent taking, then this
Lease shall automaticoll; temlinate os of the date of the taking, condemnnt;on, or
sale.
8. Partial CO/ldell/nalio/l. If any portion of Ihe LEASED AREA sholl
be taken or condemned, either temporarily or permanently, for public purposes, or
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sold to a convening authority under threat of such condemnation to prevent taking,
then OWNER agrees that PCS may use and/or construct upon an alternative
portion of OWNER's Property that is suitable for PCS' purposes, provided such
suitable space is available. The exact site to which PCS may relocatc will be
determined by OWNER, and it may be any portion of OWNER's Propcrty (or
other property owned or controlled by OWNER), provided pes approves the new
site as being suitable for PCS' intended uses. OWNER will designatc a site to
which PCS may relocate prior to the taking, condemnation or sale. In the event no
alternative portion of the OWNER's Property is suitable for PCS' purposes, then
this Lease shall forthwith automatically terminate as of the date of the taking,
condemnation or sale.
C. COlldclllllalioll Award. OWNER shall receive the entire
condemnation award for the land and all other improvements as were paid for by
OWNER. PCS hereby expressly assigns to OWNER any and all right, title and
interests of PCS now or hereafter arising in and to any such award. PCS shall
have the right to recover from the condemnor, but not from OWNER, any
compensation as may be awarded to PCS on account of the taking of its leasehold
interest, moving and rciocation expenses, and depreciation to and removal of
personal property and fixtures of PCS from the LEASED AREA.
14, Liens.
PCS 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
PCS. PCS shall, within twenty (20) days following the imposition of any such
lien, cause the same to be released of record either by payment thereof or by
posting of a proper bond ill accordance witI1 Section 713.24, Florida Slalllles. No
work which OWNER perfomls 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 O\VNER it is not responsible for payment for any
such work.
IS, Fire And Other Casualty Damage To Facilities,
If the tower and/or related facilities is/arc totally or substantially destroyed
by an act or occurrence beyond the control of PCS, PCS may terminate this Lease
effective on the date of such occurrence, or PCS may elect to rebuild the tower or
construct a similar tower. If PCS clects to terminate this Lease under this
provision, any unearned rent for the remainder of that lease year shall be refunded
by OWNER to PCS provided PCS has not otherwise breached this Lease to the
monetary detriment of OWNER or to any User. IfPCS clects 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 occurrcnce, at which time
the prior existing annual rent shall automatically recommence.
16, Taxes.
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A. This is a net-net Lease as to OWNER, PCS shall be liable for and
shall pay to the applicable taxing authority if billed direetly to pCS, or to OWNER
if billed to OWNER, upon thirty (30) days prior written notice from OWNER, any
and all taxes and assessments levied against any personal property or trade or
other fixtures placed by PCS in or about the LEASED AREA.
13. OWNER's Property is not now subject to any real property taxes.
Nevertheless, PCS 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 pCS and/or any licensees other than OWNER. PCS 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 hereafter laws of taxation are altered so that if any new tax, any
payment "in lieu of' or "as a substitute for" all or any portion of any taxes and/or
special assessments arc imposed on any of the tangible and/or intangible property,
such obligations shall be assumed and be paid by PCS except any such payments
directly attributable to communications equipment installed on the site by
OWNER or through OWNER. This assumption shall not preclude PCS from
contesting any and all such obligations.
17, Quiet Enjoyment And Non-Interference,
A. OWl'iER warrants and agrees that PCS, upon paying the rent and
performing all covenants herein provided, shall peaceably and quietly have and
enjoy the LEASED AREA, EXCEPT OWNER CANNOT WARRANT OR
GUARANTEE TO PCS THAT INSTALLATION OF THE PLANNED
COMMUNICATIONS TOWER AND/OR ITS RELATED FACILITIES ARE
ALLOWED AND/OR PERMITTED USES OF THE LEASED AREA. It is
the opinion of the County Attorney and of aaorneys for PCS that the planned uses
of the LEASED AREA, as expressed in this Lease, arc allowed and permitted uses
of the LEASED AREA and arc not in violation of any provision in the deed of that
area to the County, and arc not in violation of any provision of the Planned Unit
Development (pUD) Ordinance that applies to the LEASED AREA. All risks of
"use" issues arc hereby assumed by PCS. Subject to the foregoing. OWNER
warrants and agrees tint OWNER is seized of good and sufficient title to and
interest in the LEASED AREA "cd has full authority to enter into and execute this
Lease and that OWNER knows of no liens, judgments or impediments of title on
the LEASED AREA Property that would affect this Lease.
13. OWNER hereby grants to pCS, as a primary inducement to PCS'
entering into this Lease, the first priority right to install its antennas and operate its
wireless communications facility on the LEASED AREA. From time to time
OWNER may grant to other entities a lease or license to install communications
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 and antennas by others which
interfere with the operation of any antennas and/or equipment in the LEASED
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AREA as il exists at the lime 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 interference occurs, OWNER agrees to e"use the
elimination of such interference with opemtions at the LEASED AREA within"
reasonable time "fter receipt of PCS' notice-ai' such interference and, if neeess"ry,
to cause the interfering party to modify or cease its operations. If such
interference continues for more than thirty (30) days after PCS' notice to OWNER
with respect to such interference, OWNER shall require the party e"using the
interference to modify its use of or cease using such equipment which is causing
that interference.
c. PCS covenants and agrees that PCS' equipment, inst"llation,
operation "nd m"intenance "t the LEASED AREA and same by "ny third p"rty
licensee will not interfere with the opemtion of the OWNER's 800 MHz system or
OWNER's other transmitted or received radio signals. In the event there is "ny
such interference, PCS will promptly take all steps necessary 10 correct "nd
eliminale same within a reasonable period of time. If PCS is unable to eliminate
such inlerference caused by any such equipment, installation, operation "nJlor
mainten"nec "tthc LEASED AREA, PCS agrees to remove the offending "ntennas
from the LEASED AREA and. if the inlerferenee cannOI be corrected to the
satisfaction of OWNER, this Lease shall tennin"te at the election of OWNER.
1 g, Estoppel Certificates.
A. OWNER, "t the request of PCS, shall provide PCS with a certificate
st"ting: (I) whether OWNER h"s any claim againsl PCS and if so, stating Ihe
nature of each such claim; (2) that OWNER recognizes PCS' right to PCS'
antennas, cquipment and other property at the LEASED AREA; (3) that PCS then
h"s the right to remove PCS' equipment and other property from the LEASED
AREA notwithstanding that same may be considered a fixlure under florida law;
and (4) that OWNER at the lime of execution of the Estoppel Certificate has no
legal interesl in and "ffimlatively disclaims any interest to PCS' equipment and
other properly wilhin the LEASED AREA.
B. PCS, at the request of OWNER, sh,,11 provide OWNER with "
certificate stating: (1) that Ihis Lease is unmodified "nd in full force "nd effect
(or, if there has been "ny modification. th"lthe same is in full force and effect "s
modified (and shall stale the modilication(s)); (2) whether or not, to PCS'
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 PCS 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.
19. J\lisccIlancous Provisiol1s.
A. BROKERS. OWNER and PCS represent to each other that they have
not negotiated with any real estate broker in connection with this Lease,
B. ENTIRE AGREEMENT. This Lease, including attached exhibits
which arc hereby incorporated by reference, incorporates all agreements and
understandings between OWNER "nd PCS, and no verbal agreements or
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understanding shall be binding upon either OWNER or PCS. Any addition,
variation or modification to this Lease shall be ineffective unless made in writing
and signed by both of the parties.
C. 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 govemmental or quasl-
governmental authority. Correcting any such non-compliance shall be
accomplished at no cost or expense of PCS.
D. CONTROLLING LA IV. This Lease and all license agreements and
other agreements related hereto and the performance hereof shall be governed,
interpreted, construed 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.
E. SUCCESSORS AND ASSIGNS, This Lease, all licenses, and all other
directly 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.
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.
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. ALL OTHER INTERESTS SUBORDINATE. This Lease and all of
TENANT's property at the LEASED AREA sball during its life always be
superior to any mortgage and any other pledge by OWNER and by PCS. OWNER
and PCS shall at no cost or expense to the other, execute whatever subordination
agreements and/or other instruments as may be required by the other to evidence
each subordination. PCS hereby promises that as of the date of execution of this
Lease there is no deed of trust, mortgage, or other any other encumbrance
aCCecting this Lease or any property oC PCS that may be placed within the
LEASED AREA. OWNER promises that there exists no mortgage, deed oC trust,
or other encumbrance or pledge by OWNER that is superior to PCS' Leasehold
interests in this LEASE, and that OWNER shall not knowingly enter into or suffer
any such encumbrance to become superior to any of PCS' 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 of law.
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1. A 7TORNEYS , FEES. If either party institutes any action or
proceeding in court to enforce any provision hereof, such as an action for JaJ11Jgc$
for any alleged breach of any provision hereof, then the prevailing party in such
action or proceeding shall be entitled to receive from the non-prevailing party such
amount as the court may adjudge to be reasonable attorneys' fees for the services
rendered to the prevailing party. together with its other reasonable litigation
expenses.
J. FAILURE TO CURE CURABLE BREACH. If either party breaches
this Lease in any manner and fails to commence to cure such breach within thirty
(30) days after receiving a writtcn 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 0[- 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 breaeli or perform the breaching party's
obligations (on the breaching party's behalf and at the breaching party's expense)
and require the breaching party to reimburse all reasonable expenses incurred in
doing so, plus interest (from the date such expenses arc incurred until
reimbursement) at twelve percent (12%) per annum.
K. SEVERABILITY. If any portion of this Lease is declared by a court
of competent jurisdictIon to be invalid or unenforceable, 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. sueh portion and the balance of this Lease
shall eontinue in full force and effeet.
1.. INJUNCTIONS AND EQUITABLE RELIEF. In addition to all other
remedies provided for in this Lease, OWNER and PCS shall be entitled to
immediate restraint by injunction (or any other appropriate equitable remedy) of
any violation of any of the covenants. conditions or provision of this Lease.
M. CAPTIONS. The eaptions of the paragraphs used in this Lease are for
convenience of reference only and shall not affect the interpretation of this Lease.
N. EXISTING LIGHT POLE. The subject Tower will be installed in a
location so as to replace an existing light pole at a ball field, The existing light
pole shall be removed from the ground by PCS and shall be left on the ground to
be moved by OWNER. At no cost to OWNER, PCS will install light fixtures on
the Tower to take the place of the now existing lights. Such lights shall be
installed at the same height as the existing lights. After installation, OWNER shall
be responsible for the maimel1Jnee, repair and replacements of the light fixtures.
O. GOVERNMENT APPROVALS BY PCS. OWNER acknowledges that
PCS' ability to use the LEASED AREA and TENANT's Property for its intended
purposes is contingent upon PCS' obtaining and maintaining, both before and
after the Commencement Date, all of the certificates, permits, lieenses 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 PCS. OWNER agrees to cooperate with
PCS in PCS' efforts to obtain s!Jeh Governmental Approvals and OWNER shall
]9
8 E 1
take no action that would adversely affcct PCS' obtaining or maintaining such
Governmental approvals.
P. MEMORANDUM OF LEASE AGREEMENT. Concurrently with the
execution of this Lease, OWNER shall execute and deliver to PCS for recording a
"Memorandum of Lease Agreemcnt" in the forn1 of the attached Exhibit B.
END OF TEXT OF LEASE
IN WITNESS WHEREOF, OWNER and PCS have duly executed this Lease as
of the day and year first above written.
A TrEST:
DWIGHT E. BROCK
CLERK OF COI1RTS
.By: ~~~
Deputy Clerk
Approved as to Form and
Legal Sufficiency:
Ji,oW' (. fell
Thomas C. Palmer
Assistant Coullty Attorney
OWNER
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
//_r)_ .' ./;/ ~
/~. .;;7 _
BY:~~--: ./, ,/,//5__
TIMOTHY L~IANCO K, CHAIRMAN
0>-7/97
STATE Of fLORlDA
COUNTY Of \))\1\ \\.C1C \
res ("TENANT")
PRIMECO PERSONAL COMMUNICATIONS,
L.P. a Delaware Partnership
BY:~ (~,%4
Print Name:.1L.h'< \ \X K\' Ilt~Fr0
. (, . /
Title: \C\ \',\\1((\ ~ ,,,,ICI \ C'
The foregoing Ground Leose was acknowledged before me this \(21b day
'~ of J~}';~ ' 1997, by Kelt, 1 1<< 11c)€ I, -: . ' as the
\'l \\\\\(t,\ \ .'ill \('~' of Pnmeco Personal Commulllcat,ons, L.P., a
Delaware Partncrship, who is personally known to me. .(\
'''ill :l,~~~.~~":;:~~"", C\(L A;" -. Cll\lLc0
* * E.p"....J'm;'li.l~
""'ICI'lG"~'" =~r=l Notary Public
h: \agree men tsl21 4/9 7 cirouno Ie ase -Ie p
My Commission Expires: \ ~(, ,)~, \CiC)rl
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Tcact S-(, ~h. Vineyards u~lt J, in Accordonce with &nd AVOjoct to
th., plat rocorded 1n Plat 500k 16 ...t pagoi 7.-S . P\,1-1ic
Records Collier County. rlorid<l-~ct to thlil-r.C1TO'.dnq covenants
and restrictions.
By delivery and acceptance of thlc de~d of conveyance the
Crantor anj GranteQ ra~pgctivaly ~c~nQwl~~9~ (or the~selv~s an~
th~ir succe5S0rs and a5s19ns the [011010111"19 cov~n~nt. bod
restrictions ....hieh shall bind th'-lIlt r\m w1th th_ land, and enure
to the benefit of ull owners o~ trc.C"tll withIn The vlnoyards Unit
"
1. ~(H~ lal'd& cunveyed heroin sh.111 be u$.cd (or public
a~hool. p&rk. recreation, open splce, and a~5oci8~ed
purpulOel::.
., The o....non. of Tracts S-) .....,d S..~ (School BOllrd and
Collier County) chall de.:;d;n a"d ct"nstr\lct th~ rO.'Jd....",y liho\o'n
;';':J IIrbor.' Boulevard on the plat ("I' Tho VlnaYllrds (....It. J. Said
d~~\9n of ~r~or Boul"varJ sholl 1nclJ~e a land~c~pable ~cdlan
at tho C.:1stern intersect ""n w1th viney:.rds Doulovurd.
J. Tracts S-l and 5-2 shall h.lVe \r,grell$: and egre.~:5 ac::eS!l
'/ill the ro"d.....1.Iy &ho....n ll~ ;"CC"H" UO'Jlll....ard on the ;lat of The
Vlne)'llrdl< unlt l. lIubj4l<ct 'to C<Jllier County right-o(-....ay
r.gul!l.tioTlIl.
4. ).,1. l.andsClpe easelllents sh~I',m on the plat s~. , be
init(lll~~, constructe~, ll~d ldndscaped by the r,rll~~or or The
\llnl!.Yllr;;!,. CO!'Jlunity A5(1ociation, Inc.. ....ithin SO day. frolll
tl1e i::-.prc,.ter.;ent of ",nl parcel or tracL abutting t; lalldscop"
flll:';~lIlent shoyn on the pl"t o( Tho vineyards Urnt J, but. In
any L,vent not. ;at.er th,~, t....o ye<'!n; tron tt.!.. .eccrdi:1q ot
th'He reatrIctions in the Puhl~c Rf'"::ords at Collier County'.
Florida. 'rhQ d{>slqn and landscaping ....~':..,in landscape
~a.~en~s abuttinq ~andl!.rbilt Baach Road as 6hoyn on t.he plot.
of The "'Incyards Unit) ih.o11 be subject to lIlutual lll-'proval
by Ule Grantor and t.hl!l O....ner ot Tract S-) (School B'l4rd)
prior to i~itial installation.
5. The O....ner ot Tract S-l (School BOA.rc!\ shal::' \:1e into the
lIla5t~r water manaq~~ent p'an tor The Vineyards pun via Arbor
Boulevard And Vineyards Boulevard at. no CG.t to the Grant.or.
6. The water ~anaqe=ent lequire~ents of Trll\.t 5-4 shall b~
provid~d via ~ J.5~ acra la~e to bA designed, constructed,
and connecled to the IIUlster water !lIanagellent plAn or the
lIin"'Yllrd" PUD It the Cxp,U;f;e of the owner ot parcel 5-4
(Collier CO'Jnty). "he locatinn of the ).5+ i!lcra : _Ae. 6ha11
be within !~::::: :;outherly 1200 teet ot Tract-S-4. t.;'Y '~ale["
manageme"t n,~q\.li!'e1fl'!nt.s tor ~ither parcel 5.J or 5-4 not ,.et
by tho ).~:':. ac,E.' laKa shall be provided by th~ Crantor via
tne ~a~ter ~ater m~nagement p]~n (or the Vineya!'J~ PU~.
7. ~ny con~truction and U6a for the purposes of &thl~tic
f'~1d<; (toot~lall, b~sebal1, soccer) shall be Substlll1tially
loc~t.e~ w{thin the nortnerly 950 feet oC Tract 5-4 an~ tho
"'C5tC:-),y 425 fb"...t ot Tract S-) as s;ho',m on thl!; plat ot" the
Viney~rM5 Unit l. The. n....ner~ o! Trbcts ~-J and S-4 (School
,: :1' \ f; 8
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Ph(;E
Bonrd 1\rd collier County) illll11 ,lOt light 6,,\d a::'hletic
tiolds tor 0 period o! fivo ycars from th~ rlrnt d3te ot
rer:ording OL t.h1J60 restrictions in thtl publlc records of
Colli3r county, rl~rid~.
8. The o~nur o( Tract 5-4 (Collier ~~unty) sholl rnt place
'I'ract 5-4 in U!)t': (or: pllbl\C park purposes, with the exception
or the allove ro:.[eranced athlctJ.c ficlde aOla aS60cia.ted
facl1iti~6, for 30 aonths from tho firat date of recording of
theso r,,"strictiona in the ~ub1ic: recoeds oC collier County,
rloridll.
9. ThQ o~norG of Tract 5-3 (f,chool Board) and Tract S-4
{CollIer County} _hall cat,SI! ~he ....e.tern 425 fGet of Tract
S~J to ~. deciqned ror joint use by said ovner6 for athletic
field., park and a.sociat~d purpO$~a. Addltionally, the
o~nerft of Tract S-) (Schocl Board) Dn~ Trar.t S~4 (Collier
County) sholl cause those portion~ of Tract S-) and S-4 yhich
are adjacent to an~ no~r the wa,tern t~r~inu5 of IIrbor
Boulevard a3 ~r.~~n on the pla~ of the Vincy~rds Unit J to be
delldqn.d for joint use ti' 6:'1i~ ololners Cor ~l,e purpOSei of
inql'C."t .gr..II, parking, .n~ \ltill.tiClG necessary to Borve
the entire requirencnt& of both Tracts 5-) and 5-4. ~n this
en~, the OWnl!l'S at Tract r,-) (School Bonr"-) and Tract S-~
(C~llier county) 8h~ll bQ nbligateJ to grant reasonable
eaf;elllont" tor aald purposes to each other to C1ftoctu~te thl.s
provisic:.,.,.
EXHIBrr "1.2'
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