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ELEVATED WATER TANK SPACE LICENSE AGREEMENT between O
INDIAN RIVER COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF
FLORIDA
AND
NEXTEL COMMUNICATIONS , Inc .
This Elevated II1Vatei Tank Space License Agreement ( " Agreement " ) is entered into this _16th
day of August , 2005 , between Indian River County , a political subdivision of the State of
Florida, whose address is 1840 25 'h Street, Vero Beach, FL 32960 (hereinafter " Licensor" ), and
Nextel South Corp - , a Georgia corporation , d /b/a Nextel Communications . , its affiliates, successors
and assigns , having an address at 851 Trafalgar Court, Suite 300 East, Maitland, FL 32751
(hereinafter " Licensee " ) .
1 . LOCATION,
Licensor is the owner of a parcel of land (the " Land " ) and a steel elevated water storage tank (the
" Elevated Tank " ) identified as Gifford Water Tank , located at 4690 29th Court (north of 49th
Street) in Indian River County, Florida (the Elevated Tank and the Land are collectively, the
" Property" ) . The Land is more particularly described in Exhibit "A" annexed hereto . Licensor
hereby grants to Licensee a non-exclusive license to enter upon the Land and use space for the
mounting of various antennas and associated equipment, including, but not limited to coaxial cables
and supports on the exterior of the Elevated Tank, ground space for the installation of a
prefabricated equipment shelter or construction of a communications building to be constructed on
the Property, together with permission for access and to provide utilities (collectively, the
"Premises " ) as described in Exhibit ` B" attached hereto .
2 . USE .
The Premises may be used by Licensee solely for installation, operation, and maintenance of a
communications facility and uses incidental thereto , as determined by Licensee, now or in the
future to meet Licensee ' s telecommunications needs on the exterior of the Elevated Tank and
ground space for the installation of a prefabricated equipment shelter or construction of a
communications enclosure to be constructed on approximately nine hundred square feet (900 sq .
ft . ) , and Licensor acknowledges that Licensee will run flexible coaxial transmissions lines between
the various antennas on the Elevated Tank and the radio equipoltnt located in the equipment
shelter, in accordance with all applicable laws, ordinances , and administrative regulations , and in
accordance with the construction plans attached hereto as Exhibit "C" . Licensor agrees to
cooperate reasonably with Licensee, at Licensee's sole expense, in making application for and
obtaining all licenses , permits and other necessary approvals that may be required for Licensee's
above-described use of the Premises .
3 . TESTS AND CONSTRUCTION,
Licensee may at any reasonable time during Licensor ' s regular business hours at the Elevated Tank
following the full execution of this Agreement and Licensee ' s provision of proof of required
insurance, and following notice to Licensor ' s Utility Services Director or his designee, enter upon
the Premises for the purpose of making appropriate engineering and boundary surveys , structurals,
environmental or other inspections, and constructing the Licensee Facilities (as defined in
Paragraph 4 (a) below) .
4 . ANTENNA INSTALLATION.
(a) Licensee may install , operate, and maintain on the Premises wireless antenna systems and
associated equipment to be mounted on the Elevated Tank, an equipment shelter on the ground and
flexible coaxial transmission lines between the antennas on the Elevated Tank and the radio
equipment located in the equipment shelter ( "Licensee Facilities " ) , as more fully described in
Exhibit "D" . In connection therewith, Licensee may install up to Six (6) panel type antennas with
dimensions no larger than 2 ' x 8 ' . All of Licensee' s construction and installation work shall be
performed at Licensee's sole cost and expense and in a good and workmanlike manner. Provided
that Licensee is not in default under any covenant or agreement contained in this Agreement,
Licensee may remove all Licensee Facilities at its sole expense on or before the expiration or earlier
termination of the Agreement. At Licensor' s option, Licensee shall repair or pay for any damage to
the Premises or to the property caused by the removal of the Licensee Facilities .
(b) Licensee shall pay for the electricity it consumes in its operations . Licensee shall obtain
separate utility service and install a separate meter from any utility company that will provide
service to the Property (including any standby power generator for Licensee' s exclusive use) .
Licensor agrees to sign such documents or easements as may reasonably be required by said utility
companies to provide such service to the Premises , including the grant to Licensee or to the
servicing utility company at no cost to the Licensee, of an non-exclusive easement in, over across or
through the Land as reasonably required by such servicing utility company to provide utility
services as provided herein.
(c) Licensee, Licensee's employees, agents, and subcontractors may reasonably access the
Premises for installation, repair, or maintenance of Licensee ' s Facilities following notice to
Licensor ' s Utility Services Director or his designee twenty-four (24) hours a day, seven (7) days a
week, at no charge . In the event of an emergency, Licensee or its authorized agent(s) may access
the Premises without prior notice but Licensee agrees to give notice to Licensor' s Utility Services
Director within twenty-four hours of such access . Licensor grants to Licensee , and its agents,
employees, and contractors, a non-exclusive right and license for pedestrian and vehicular ingress
and egress across that portion of the Land described in Exhibit ` B" .
(d) Licensor shall maintain all access roadways from the nearest public roadway to the
Premises as customarily maintained for Licensor ' s ordinary use . Licensor shall be responsible for
maintaining and repairing such roadway, at its sole expense, except for any damage caused by
Licensee ' s use of such roadways the repairs of which shall be paid by Licensee .
(e) Before commencing operation of the Licensee Facilities Licensee shall provide to Licensor
certification by a professional engineer licensed in the State of Florida that the design and
installation of the Licensee Facilities meet or exceed AWWA standard D100 and all applicable
building codes .
(f) Upon completion of the Licensee Facilities Licensee shall provide to Licensor as-built
drawings of the Licensee Facilities showing the location and details of the Licensee Facilities .
Licensee shall be solely responsible for obtaining all federal , state , and county approvals, licenses,
certificates, and permits, including an Indian River utility construction permit, for the construction
operation and maintenance of the Licensee Facilities .
(g) Licensee covenants and agrees that the Licensee Facilities and the installation, operation,
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and maintenance thereof shall not damage or impair the strength of the Elevated Tank and the
accessories thereto or any other Licensee ' s equipment nor interfere with Licensor' s use of the
Elevated Tank. Licensee, after receipt of written documentation, will be responsible for cost of
repair, for any damage caused by Licensee or by its agents, employees or invitees to the Elevated
Tank or its accessories or to any other Licensee ' s equipment.
(h) Licensee shall equip its Licensee Facilities with hurricane protection, lightning protection,
and power surge protection.
(i) Licensee covenants and agrees that, in the event Licensee needs to install utility services
underground on the Property, Licensee shall submit to Licensor for approval or disapproval
construction plans showing the location and path of any proposed trench or other excavation
prior to the commencement of any work . Licensee shall be responsible for obtaining all
necessary permits , and shall perform any trenching or excavation in a proper, workmanlike
manner to prevent any interference with Licensor ' s or any other Licensee ' s property or
equipment or use of the Property .
5. TERM OF AGREEMENT.
The initial term of this Agreement shall be five (5 ) years commencing upon commencement of
construction of Licensee Facilities or one hundred eighty ( 180) days from full execution of this
Agreement, whichever first occurs ( " Commencement Date ") and terminating on the day preceding
the fifth anniversary of the Commencement Date (the "Term " ) unless otherwise terminated as
provided herein. In the event Licensee is not in default in the performance of any term or condition
of this Agreement, Licensee shall have the option to renew this Agreement for up three (3 )
successive five (5 ) year terms (the " Renewal Terms " ) on the same terms and conditions as set forth
herein, except as otherwise agreed to by both parties . Each option for a Renewal Term shall be
deemed automatically exercised with notice by Licensee to Licensor, unless Licensee gives
Licensor written notice of Licensee ' s intent not to renew to Licensor at least six (6) months prior to
expiration of the then current term .
6. LICENSE FEE.
(a) Beginning on the Commencement Date, Licensee shall pay an annual license fee of
TWENTY THOUSAND AND 00/ 100 DOLLARS ( $ 20 , 000 . 00) to be paid in equal monthly
installments of ONE THOUSAND SIX HUNDRED SIXTY SIX AND 67/ 100 DOLLARS
$ 1 666 . 67 to be paid on the first day of each month to Licensor, in advance , without deduction
or offset, at such place or places as may be designated in writing by Licensor at least thirty (30)
days in advance of any rental payment date . Licensee shall pay all prevailing Florida sales taxes,
if applicable , tangible property taxes associated with Licensee ' s Facilities, and intangible
property taxes , as may be applicable . If the Commencement Date is on a date other than the first
day of a calendar month, Licensee shall make a prorated payment of the installment of the annual
rental payable for the first and last month of the term of this Agreement .
(b) The license fee shall increase on each annual anniversary of the Commencement Date by an
amount equal to four percent (4%) of the License fee for the previous year.
(c) Licensee will have the right, at its sole cost and expense , to use a direct deposit system
with regard to rent payments . Licensor agrees to cooperate with Licensee in providing requisite
information to Licensee for such direct deposit .
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7. SECURITY DEPOSIT.
This section intentionally left blank and has been removed in its entirety .
8. TERMINATION BY LICENSOR.
(a) The Licensor reserves the right to terminate this Agreement if Premises are needed for the
use of Licensor upon one hundred eighty ( 180) days ' prior written notice by Licensor to Licensee .
Licensor may not terminate License for purpose of substituting a new or different licensee .
(b) If Licensee defaults under any of the conditions set forth herein, Licensor shall have the
right to terminate this Agreement upon thirty (30) days ' written notice to Licensee . The occurrence
of any one or more of the following events inter alfa shall constitute an " Event of Default "
hereunder by Licensee :
i . The failure by Licensee to make any payment of license fees or any other payment required
to be made by Licensee hereunder, as and when due , where such failure shall continue for a
period of 30 days after receipt of written notice thereof by Licensee .
ii The failure by Licensee to observe or perform any of the covenants or provisions of this
Agreement to be observed or performed by Licensee, where such failure shall continue for a
period of 30 days after receipt of written notice by Licensee ; provided, however, that it shall
not be deemed an Event of Default by Licensee if Licensee shall commence to cure such
failure within said 30 days and thereafter diligently cures the default within 60 days, unless
written extension is granted by Licensor.
iii The Licensee uses the Premises or the Property for any unauthorized or illegal purpose .
iv The Licensee uses the Property for other than the use permitted by this Agreement.
v The Licensee ' s or Licensee ' s employee ' s or agent' s act or omission damages the Property
or harms the environment and Licensee , after written notice from Licensor, has not repaired
any damage or cured any failure within thirty (30) days after receipt of written notice by
Licensee ; provided , however, that it shall not be deemed an Event of Default by Licensee
if Licensee shall commence to cure such failure within said 30 days and thereafter
diligently cures the default within 60 days . Further written extensions may be granted by
Licensor in its sole discretion.
If there occurs an Event of Default by Licensee, in addition to any other remedies available to
Licensor at law or in equity, if Licensee has not cured any failure within thirty (30) days after
receipt of written notice by Licensee, provided, however, that it shall not be deemed an Event of
Default by Licensee if Licensee shall commence to cure such failure within said thirty (30) days and
thereafter diligently cures the default within sixty (60) days , Licensor shall have the option to
terminate immediately this Agreement and all rights of Licensee hereunder unless written extension
is granted by Licensor.
(c) Licensor shall have the right to terminate this Agreement upon sixty (60) days ' written
notice if.
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i . Licensee defaults hereunder as described in paragraph 8 ; or
ii . The Elevated Tank is wholly or partially destroyed by any cause and Licensor decides not to
repair the Elevated Tank,
9. TERMINATION BY LICENSEE.
The Licensee may terminate this Agreement upon sixty (60) days prior written notice as follows :
(a) If Licensee , exercising due diligence , after appropriate applications, is unable to obtain all
necessary governmental approvals for Licensee ' s intended use of and improvements to the
Premises as set forth in this agreement; or
(b) If Licensee ' s application for any governmental approvals necessary for Licensee ' s use of
the Premises and improvements contemplated by this agreement is denied ; or
(c) If any governmental approvals necessary for Licensee ' s use of the Premises and/or
improvements to the Premises are canceled or are otherwise withdrawn, terminated, or denied so
that Licensee will no longer be able to use the Premises for Licensee ' s use contemplated by this
agreement; or
(d) If Licensee is unable to utilize the Premises due to an action by the Federal
Communications Commission ( " FCC " ) ;
(e) If Licensor defaults on any covenant or term of this Agreement, which default is not cured
within sixty (60) days of receipt of written notice of default;
(f) For any reason or no reason, provided Licensee delivers written notice of early termination
to Licensor no later than thirty (30) days prior to the Commencement Date ;
(g) If Licensee determines that the Premises are not appropriate for its operations for economic
or technological reasons , including, without limitation, signal interference ; or
(h) The Elevated Tank is wholly or substantially destroyed from any cause and Licensor
decides not to repair said Elevated Tank .
(i) Any termination notice rendered by Licensee pursuant to this paragraph shall cause this
Agreement to expire with the same force and effect as though the date set forth in such notice where
the date originally set as the expiration date of this Agreement and the parties shall make
an
appropriate adjustment, as of such termination date, with respect to payments due to the other under
this Agreement, if any.
10. TAXES.
If personal property taxes are assessed, Licensee shall pay any portion of such taxes attributable to
the Licensee ' s Facilities . Licensee shall pay any real property taxes and assessments attributable to
Licensee ' s occupancy and use of the Premises .
11 . ASSIGNMENT AND SUBLEASING .
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This Agreement may be sold , assigned or transferred at any time by Licensee to Licensee' s parent
company or any affiliate or subsidiary of Licensee or its parent company or to any entity with or
into which Licensee is merged or consolidated, or to any entity resulting from a reorganization of
Licensee or its parent company . However, Licensee shall not assign, or otherwise transfer all or
any part of its interest in this Agreement or in the Premises to a third party without the prior written
consent of Licensor. Licensee shall not sublease or sublicense the Premises . This Agreement shall
be binding upon the respective parties, their assigns, and successors . From and after the date the
Agreement has been sold, assigned or transferred by Licensee to an approved third party agreeing
to be subject to the terms hereof, Licensee shall immediately be released from any and all
liability under this Agreement, including the payment of any rental or other sums due, without
any further action .
12 . AS IS.
Lakes the facilities as is and Licensor does not warrant that the facility is sufficient for the use
intended by Licensee . Notwithstanding the foregoing, Licensor warrants that there are no deeds to
secure debt, mortgages, liens, recorded agreements or judgments encumbering the Property and no
restrictive covenants , or other encumbrances on the title to the Property that would prevent Licensee
from using the Premises for the uses intended by Licensee as set forth in this Agreement. Licensor
further agrees and warrants that it shall provide and be responsible for maintenance and repairs to
the Elevated Tank to preserve the Elevated Tank in good order and condition. Licensor shall
maintain all common areas on the Property and Premises .
Licensee may, as needed, make upgrades , and maintain or replace damaged or broken equipment,
without the Licensor' s written approval .
Licensor may allow Licensee to modify the facility to make the facility usable by Licensee . Such
modification is subject to Licensor' s prior written approval . All modifications , which are approved
by Licensor, shall be made at the sole expense of Licensee .
13 , LICENSOR ' S ADDITIONAL DUTIES .
(a) Licensor understands and agrees that the continuity of Licensee ' s services is of
paramount importance to Licensee . Licensor shall at all times exercise the highest standard of
care and judgment to prevent damage to Licensee ' s services . Licensor will cause any subsequent
licensees to verify by frequency search that its signal will not interfere with Licensee ' s . In the
event any of Licensor' s other licensees ' signals causes material interference with Licensee' s
Facilities , Licensor will exercise its best efforts to promptly and diligently resolve such problems
after notice by Licensee to Licensor . In the event that material interference continues for a period
of forty-eight (48 ) hours after Licensee sends written notice , Licensee shall so notify Licensor in
writing, and Licensor shall cause the interfering operation to cease except for brief tests , which
are necessary to determine the cause of the interference . If such interference cannot be
eliminated, Licensee, in its discretion, has the right to (i) request Licensor to cause the interfering
party to cease operations permanently or (ii) request Licensor, upon full agreement with
Licensee , to allow Licensee to relocate at a different location on the Elevated Tank, at Licensee ' s
expense or (iii) immediately terminate this Agreement without further obligation to Licensor .
Material interference shall be deemed to be any interference , which violates the terms and
conditions of transmitter licenses , and/or rules and regulations of the Federal Communications
Commission . In no event will Licensor be liable for any consequential damages (including,
without limitation, lost profits) arising from any such interference .
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(b) Licensor agrees that Licensee shall have access to the Elevated Tank and the Premises on
which the Elevated Tank is located 24 hours per day, seven days a week, following notice to
Licensor ' s Utility Services Director or his designee for the purpose of maintaining and repairing
its equipment. In the event of an emergency, Licensee or its authorized agent(s) may access the
Premises without prior notice but Licensee agrees to give notice to Licensor' s Utility Services
Director within twenty-four hours of such access . Subsequent to the initial installation of the
directional antenna system, Licensee may install and remove its equipment on the Elevated Tank
only with the prior written consent of the Director of Licensor' s Utilities Services, which consent
shall not be unreasonably withheld, conditioned or delayed . Licensor ' s or Licensor' s authorized
agent ' s failure to approve or disapprove any additional items within fourteen ( 14) days following
the request therefor shall be deemed an approval . However, Licensee does not have to obtain prior
written consent from Licensor, Licensor' s Director of its Utilities Services , or from any of
Licensor' s authorized agents to maintain, install, replace or remove any equipment located within
its equipment shelter.
(c) Nothing contained herein is intended nor shall be construed to waive Licensor ' s rights and
immunities under the common law or Florida Statutes § 768 . 28 , as amended from time to time .
(d) To the extent permitted by law, Licensor agrees to be responsible for any act or omission
of Licensor, its agents , employees , licensees , or its independent contractors , which occurs during
the term of this Agreement or alleged to arise from a breach of this Agreement by Licensor . If
determined liable by a court of competent jurisdiction, Licensor shall pay all claims, losses , liens,
settlements and judgments in connection, therewith, including, but not limited to , attorneys ' fees
and costs to defend all suits .
14. LICENSEE ' S ADDITIONAL DUTIES.
(a) The installation, maintenance, repair, and removal of Licensee ' s equipment shall not
damage the Premises or the Elevated Tank structure or the Property or interfere with the
maintenance of the Property.
(b) Licensee shall comply with all rules and regulations of the Federal Communications
Commission, and all other applicable laws, ordinances, and regulations .
(c) The Licensee shall , at least ten ( 10) days prior to Licensee ' s use or occupancy of the
Premises , provide to the Licensor a certificate of commercial general liability insurance with a
reputable insurance company authorized to issue insurance policies in the State of Florida,
subject to approval by the Licensor' s risk manager, in an amount not less than $ 3 ,000 , 000
combined single limit for bodily injury and property damage , including coverage for
premises/operations , products/completed operations , contractual liability, and independent
contractors, in accordance with the Licensor ' s Administrative Policy Manual . The Licensee
shall , at least ten ( 10) days prior to Licensee ' s use or occupancy of the Premises , provide to the
Licensor a certificate of business auto liability insurance with a reputable insurance company
authorized to issue insurance policies in the State of Florida, subject to approval by the
Licensor ' s risk manager, in an amount not less than $ 3 , 000 , 000 per occurrence combined single
limit for bodily injury and property damage , including coverage for owned autos, hired autos , and
non-owned autos, in accordance with the Licensor ' s Administrative Policy Manual . The
commercial general liability and auto liability insurance policies shall name Indian River County,
a political subdivision of the State of Florida, as an additional insured . In addition , the Licensee
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shall , at least ten ( 10) days prior to Licensee ' s use or occupancy of the Premises , provide to the
Licensor a certificate of worker' s compensation insurance , including employer' s liability, with a
limit of $ 100 , 000 each accident, $ 500 , 000 disease (policy limit) , $ 100 , 000 disease each
employee , in compliance with all state and federal laws , and in accordance with the Licensor ' s
Administrative Policy Manual . All required insurance shall be issued by a company that is
authorized to do business in the State of Florida and that has a rating equal to or exceeding A-VII
from A . M . Best' s Insurance Guide . The Licensee shall provide to the Licensor at least thirty (30)
days ' written notice addressed to the Licensor' s risk manager, prior to cancellation or reduction
in coverage of this cell site only of any required insurance . Licensee shall cause any contractor or
subcontractor performing any work on the Property to provide to Licensor certificates of
insurance under the same conditions and with the same policy limits as required of the Licensee .
(d) The Licensee hereby releases and holds harmless the Licensor, and the Licensor ' s
officers , employees and agents, from and against any and all claims for damages , costs , third
party claims , judgments , and expense to persons or property that may arise out of, or
be
occasioned by, Licensee ' s use or occupancy of the Premises and of the Property, or from any act
or omission of any representative , agent, client, and/or employee of Licensee , and Licensee shall
indemnify the Licensor against any such claims and any judgments that may be entered in
connection therewith, including attorney fees . It is the intention of this indemnification
agreement on the part of Licensee , and a condition of this agreement, that Licensee shall fully
indemnify the Licensor and the Licensor ' s officers , employees , and agents , against any kind or
character of claim whatsoever that may be asserted against the Licensor or against the Licensor' s
officers , employees , or agents , excepting , however, such liabilities and losses as may be due to or
caused by the acts or omissions of Licensor or its officers , employees , or agents . . Licensee
hereby agrees to defend any and all suits , claims, and causes of action brought against the
Licensor or against the Licensor ' s officers, employees , or agents , arising out of or in connection
with Licensee use or occupancy of the Premises and of the Property , and Licensee agrees to pay
any judgment or judgments , including attorney fees, that may be rendered against the Licensor or
against any of the Licensor ' s officers , employees , or agents , in connection therewith .
(e) Upon termination of this Agreement Licensee shall promptly remove all its equipment and
shall at Licensee ' s sole expense restore the Property to the same condition in which it was prior to
Licensee ' s use, except for normal wear and tear and damage covered by casualty insurance .
15. NOTICES.
All notices hereunder must be in writing and unless otherwise provided herein shall be deemed
validly given if sent by certified mail , return receipt requested, addressed as follows (or to any other
mailing address which the party to be notified may designate to the other party by such notice) or as
otherwise provided under applicable state law. Each party shall promptly notify the other party of a
change of address as provided in this paragraph . Unless Licensor specifies otherwise in writing,
Licensee shall direct license fee checks to Licensor at Licensor ' s address set forth in this paragraph.
LICENSEE : Name : Nextel South Corp . .
Address : 851 Trafalgar Court . , Suite 300 East
City/State/zip : Maitland, FL 32751
Attn : Property Manager : (407 - 838 - 5334)
With a copy to : Nextel Communications
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MINNIE
2001 Edmund Halle
Reston, VA 20191 - 3436
Attn : Regional Legal Services , Contracts Manager
LICENSOR: Indian River County Board of County Commissioners
1840 25th Street, Vero Beach, FL 32960
Attention : Terry Smith, Telecommunications Manager
General Services Department
Phone : (772) 567- 8000 , Ext, 1318
16. HAZARDOUS SUBSTANCES .
Licensee shall not use, generate, store or dispose of any Hazardous Material (defined below) on,
under, about or within the Property or the Premises in violation of any law or regulation. Licensee
agrees to defend, indemnify and hold harmless the Licensor and the Licensor' s officers, agents and
employees against any and all losses , liabilities , claims and/or costs, including reasonable attorney
fees and costs, arising from Licensee ' s breach this paragraph. As used in this paragraph,
"Hazardous Material " shall mean petroleum or any petroleum product, hydrocarbons, asbestos, any
substance known to cause cancer and/or reproductive toxicity, and/or any substance, chemical or
waste that is identified as hazardous, toxic or dangerous in any applicable federal , state or local law
or regulation. This paragraph shall survive for one ( 1 ) year after expiration or termination of this
Agreement.
Licensor warrants, represents , and agrees that neither the Licensor nor, to the best of Licensor' s
knowledge, any third party has used, generated, stored, or disposed of any Hazardous Materials
in, on, or under the Leased Premises , Property and contiguous surrounding property . "Hazardous
Materials" shall mean petroleum or any petroleum product, asbestos , and any other substance,
chemical , or waste that is identified as hazardous , toxic , or dangerous in any applicable federal ,
state , or local law, rule, regulation, order or ordinance . To the extent permitted by law, Licensor
agrees to be responsible for and hold Licensee harmless from any and all claims , damages, fines,
judgments , penalties , costs , liabilities or losses (including, without limitation, any and all sums
paid for settlement of claims , attorneys ' fees and consultants ' and experts ' fees) from the
presence or release of any Hazardous Materials on Licensor ' s Property or contiguous surrounding
property unless caused by Licensee or persons acting under Licensee .
17 . SALE OR TRANSFER BY LICENSOR.
Licensor agrees not to subsequently sell , lease , or use any areas of Licensor' s Property for the
installation, operation, or maintenance of other wireless communications facilities if, such
installation, operation, or maintenance would interfere with Licensee ' s facilities as determined by
radio propagation tests performed by subsequent licensee at subsequent licensee ' s expense . If the
radio frequency propagation tests demonstrate levels of interference unacceptable to Licensee,
Licensor shall be prohibited from subsequent licensing that area of Licensor' s Property at that
frequency. Licensor shall not be prohibited from the selling, leasing , or use of any of Licensor ' s
Property for non-wireless communication use .
18. CONDEMNATION.
In the event that the whole of the Property, including without limitation the Property and Elevated
Tank, shall be taken or condemned , either temporarily or permanently, for public purposes , or sold
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to a condemning authority under threat of condemnation to prevent taking, then this Agreement
shall forthwith automatically cease and terminate . Licensor shall receive the entire condemnation
award for Land, Elevated Tank and such other improvements as are paid for by Licensor, and
Licensee hereby expressly assigns to Licensor any and all right, title and interest of Licensee now or
hereafter arising in and to any such award . Licensee may recover from such authority, and shall not
recover from Licensor, any compensation as may be awarded to Licensee on account of its interest
in this Agreement.
19. MISCELLANEOUS .
(a) This Agreement constitutes the entire agreement and understanding between the parties, and
supersedes all offers , negotiations and other agreements concerning the subject matter contained
herein. Any amendments to this Agreement must be in writing and executed by both parties .
(b) If any provision of this Agreement is held invalid or unenforceable by a court of competent
jurisdiction, the remainder of this Agreement not being held invalid or unenforceable by a court of
competent jurisdiction shall remain in full force and effect .
(c) This Agreement shall be binding on and inure to the benefit of the successors and permitted
assignees of the respective parties, subject to the provisions of Paragraph 11 , Assignment and
Subleasing, of this Agreement.
(d) This Agreement shall be governed by the laws of the State of Florida. Venue for any
lawsuit brought by one party against the other party or otherwise arising out of this agreement shall
be in Indian River County, Florida or, in the event of federal jurisdiction, in the United States
District Court for the Southern District of Florida.
(e) All Riders and Exhibits annexed hereto form material parts of this Agreement.
(f) This Agreement may be executed in duplicate counterparts, each of which shall be deemed
an original .
(g) Licensor shall not be responsible for any loss , damage, destruction, or theft of Licensee ' s
equipment or property.
(h) Once during the initial term and once during any Renewal Terms of this Agreement,
Licensor may, upon sixty (60) days ' written notice to Licensee , require Licensee to move or remove
its equipment, including, but not limited to, antennas , cables , transmission lines, conduits, and
supports, from the Elevated Tank, in order for Licensor to clean , paint, repair, or otherwise maintain
the Elevated Tank. If such notice is given, Licensor agrees to permit Licensee to place temporary
transmission facilities on the Property until such time as Licensor has completed the maintenance to
the Elevated Tank.
(i) Upon prior notice to Licensee at least twenty-four (24) hours in advance , Licensor shall
have access to the Premises , when accompanied by Licensee or its employee(s) or agent(s) .
20. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the parties hereto and shall supersede all prior
l:\Common\Nextel\FL 2590 Gifford\FL2590B SAS Submittal\Original Documents\FL2590B Gifford Nextel 002 - Elevated Water Tank Space License Agreement lune 1 2005
.doc
Page 10 of 15
offers, negotiations, and agreements . No revision of this Agreement shall be valid unless executed
in writing by both parties .
IN WITNESS WHEREOF , the parties have made and executed this Elevated Water Tank
Space License Agreement on the 16thday of August , 2005 .
LICENSOR :
Attest : J . K. Barton, Clerk INDIAN RIVER COUNTY
by its Board of County Commissioners
By : By :
Deputy Clerk Thomas S . Lowther, Chairman
PPROVED : Date approved by BCC : 08 / 16 / 2005
OVER AS TO FORM
ICIENCY LICENSEE :
t ' 6nrqt�r
3v � � Nextel Communications, Inc,
Mmess : / B "ter
J'n1�t::�la}�s~: 1_.�r•,�n.n f ,� S . M �s Printame :
,o c
Scott l i ittr
Title : U /9 a f C a 9 ttj w
Witness : V ' eev , oueg> on
Signature :
Print Name : 41 1
l :\CommonWextel\FL 2590 Gifford\FL2590B SAS Submittal\Original Documents\FL2590B Gifford Nextel 002 • Elevated Water Tank Space License Agreement lune 1 2005
.doc
Page 1 I of 15
NEXTEL. SOUTH CORP .
Secret ' s Certificate
I. Matthew C . Weed, the Assistant Secretary of Nextel South Corp .,
a / b/ a Nextel CommuniCationS, a Georgia corporation (the "Company") , do
hereby certify that, as of the date of this Secretary's Certificate, john Cafaro
is an appointed agent of the Company, duty authorized to act for and on
behalf of the Company for the specific purpose of executing and delivering
on behalf of the company leases and documents related thereto .
IN WITNESS WHEREOF , I have set my hand and seal of the Company
this 30th day of June 2005 .
Matthew C . Weed
- - ' Assistant Secretary
COMMONWEALTH OF VIRGINIA
I ) ss,
FOUNTY ? F FAIRFAX
On this 30th day of June 2005, before me, Christy K. Reyes,
personally appeared Matthew C. Weed, known to me to be the same person
who executed the foregoing Secretary's Certificate, and he duly
acknowledged to me that he executed the same ,
t� l
Nota b _
30. 2 l
1
1
EXHIBIT "A"
Legal Description of County Property
(Attach copy of deed into County from Maple Leaf Properties or survey)
Commence at the NW 'sorrier - of the. SW ' quirter of the sit quarter of . Section 23 ,
Township 32 . South , Range 39 Bast , Indian River. county , 'Florida , run east
along the north line of the Of quarter of the SWquarter of Section 23 a dis-
tance of 181 . 95 feet to the point of beginning of the following tract , thence
run south and perpsneiculer to the aforesaid north line a _ distance of 237 . 0
fgett thence run *bast and parallel tV 'the north line of the aforesaid
SW quarter a distance Of 309 . 58 feeti thence sun .northwesterly 245 . 65
feet to t point lying on the north line of the aforesaid SW quarter of
'the SW quarter and 426 . 90 feet east of the RW _ corner -of the • SW 'quarter "of
the SW quarter thence: run west and along the aforesaid north line 244 . 95
feet to the point -of beginning . I
The grantor hereby * %Ives an easement for ingress and egress and for the
. purpose of constructing, and mitinfaining necessary water lines 'and
accessories thereto , on or under - the following described property as
follows :
Commence at the 11W . eorner of - the SW quarter .of the SW ipiarter of Section
23 , `Township 32 South , Range 39 Bast , Indian River County , Florida , and
run, *eat along: the north line of the southeilist .quarter of the southeast
quarter of Section 22 , township 32 South , Range 39 East , a distance of
279. 50 feet and to. the point, of beginning of a 20- foot easement , said
easement lying 20 •feet • south of *the following described . line : thence
run exit and along the north line of the southeast -quarter of the
southeast quarter , of Section 22 , Township 72 ,Southe Range 39 East a •
distance of- 179 . 56 feet and to the •NW corner of the SW quarter. of the
SW quarter of. section 23 , Township 32 South , Range 39 East; thence
run east- along the north line of the Sw quarter of the SW quarter• a
distance of 181 . 95 feet.
3:\Common\Nextel\FL 2590 Giflord\FL2590B SAS Submittsl\Original Documents\FL2590B Gifford Nextel 002 - Elevated Water Tank Space License Agreement lune 12005.doc
Page 12 of 15
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/--APPROX. BOUNDARIES30
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t NEXTEL PREMISES Y t / aF LESSOR'S LAND
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IN
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IN NO RIVER COUNTY
EQUIPMENT LIST:
(6) ANTENNAS,
PROPOSED RAO CENTER 100' -0"
('15) COAX CABLES,
( 1 ) PREFAB EQUIPMEN1SHELTER
(2 ) CPS ANTENNAS
( 1 ) TEST MOBILE ANTENNA
(IF APPLICABLE)
( 1 ; GEN ERAI'OR (IF APPLICABLE)
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WO etFlra;pra OR D0008em40 08 b?D7 N it1k1EM!,' •w- Z 28TH C,.3 $ix7;i M 2 OI' 2 �yp�O &r. M
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INO.IANO RIVER COUNTY
. MARSH CERTIFICATE OF INSURANCE CERTIFICATE NUMBER
CLE-001387707-01
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS
MARSH USA, INC . NO RIGHTS UPON THE CERTIFICATE HOLDER OTHER THAN THOSE PROVIDED IN THE
1255 23RD STREET N .W . POLICY. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE
SUITE 400 AFFORDED BY THE POLICIES DESCRIBED HEREIN .
WASHINGTON D . C .20037
Attn : HYON FAX :2129480502 COMPANIES AFFORDING COVERAGE
EMAIL: NEXTEL . CERTS@MARSH . COM COMPANY
15780-ALL--05-06 FL2509 JH ALL CLIE A STEADFAST INSURANCE COMPANY
INSURED
COMPANY
NEXTEL COMMUNICATIONS , INC . B ZURICH AMERICAN INSURANCE COMPANY
2001 EDMUND HALLEY DRIVE
RESTON , VA 20191 -3421 COMPANY
C NATIONAL UNION FIRE INSURANCE COMPANY (AIG)
COMPANY
D
COVERAGES This certificate supersedes and replaces any previously issued certificate for the policy period noted below. 2
THIS IS TO CERTIFY THAT POLICIES OF INSURANCE DESCRIBED HEREIN HAVE BEEN ISSUED TO THE INSURED NAMED HEREIN FOR THE
POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THE CERTIFICATE MAY BE ISSUED OR MAY
PERTAIN , THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS , CONDITIONS AND EXCLUSIONS OF SUCH POLICIES
. AGGREGATE
LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS .
CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION
LTR DATE (MM/DD/YY) DATE (MM/DD/YY) LIMITS
A GENERAL LIABILITY GL02984461 -02 04/01 /05 04/01 /06
GENERAL AGGREGATE $ 2 ,000 , 000
A X COMMERCIAL GENERAL LIABILITY GL02984462-02 04/01 /05 04/01 /06 PRODUCTS - COMP/OPAGG $ 2 � 000 �000
CLAIMS MADE Fx ] OCCUR PERSONAL & ADV INJURY $ 1 ,000 , 000
OWNER'S & CONTRACTOR'S PROT EACH OCCURRENCE $ 1 , 000 ,000
FIRE DAMAGE (Any one fire) $ 250 , 000
MED EXP An one person $ 10 , 000
B AUTOMOBILE LIABILITY BAP 2984147-04 (AOS) 04/01 /05 04/01 /06
COMBINED SINGLE LIMIT $ 2 , 0001000
B X ANY AUTO MA 2984148-04 (MA) 04/01 /05 04/01 /06
B �� ALL OWNED AUTOS TAP 2984149-04 (TX) 04/01 /05 04/01 /06 BODILY INJURY
SCHEDULED AUTOS (Per person) $
HIRED AUTOS BODILY INJURY
NON-0W NED AUTOS
(Per accident) $
X ARAGEKEEPER' S LIABILI
PROPERTY DAMAGE $
GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $
ANY AUTO OTHER THAN AUTO ONLY:
_ EACH ACCIDENT $
AGGREGATE $
EXCESS LIABILITY BE2979860
C 04/01 /05 04/61 /06 EACH OCCURRENCE $ 11660 , 000
X UMBRELLA FORM AGGREGATE $ 11000 , 000
OTHER THAN UMBRELLA FORM $
B WORKERS COMPENSATION AND WC 2984144-04 (RETRO) 04/01 /05 04/01 /06 X W sLTATUIMIT OTH-
EMPLOYERS' LIABILITY TORY LIMITS ER
B WC 2984145-04 (DED) 04/01 /05 04/01 /06 EL EACH ACCIDENT $ 19000 , 000
THE PROPRIETOR/ X INCL EL DISEASE-POLICY LIMIT $ 11000 , 000
PARTNERS/EXECUTIVE
OFFICERSARE: EXCL EL DISEASE-EACH EMPLOYEE $ 11000 ,000
OTHER
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
RE : FL2509B/GIFFORD
INDIAN RIVER COUNTY IS INCLUDED AS ADDITIONAL INSURED (EXCEPT FOR WORKERS' COMPENSATION) , AS REQUIRED BY LEASE OR
CONTRACTUAL AGREEMENT.
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE POLICIES DESCRIBED HEREIN BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,
THE INSURER AFFORDING COVERAGE WILL ENDEAVOR TO MAIL 3n DAYS WRITTEN NOTICE TO THE
INDIAN RIVER COUNTY CERTIFICATE HOLDER NAMED HEREIN, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR
1840 25TH STREET
VERO BEACH , FL 32960 LIABILITY OF ANY KIND UPON THE INSURER AFFORDING COVERAGE, ITS AGENTS OR REPRESENTATIVES, OR THE
ISSUER OF THIS CERTIFICATE.
MARSH USA INC.
BY: Anita K . Delarue
MM1 ( 3/ 02 ) VALID AS OF : 07/06/05