HomeMy WebLinkAbout2011-228B Ao / l - A (9 9 1 1 3 � I
THIRD AMENDMENT TO LICENSE 12 . 1
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THIS THIRD AMENDMENT TO LICENSE (the "Amendment") , dated as of the latter of
the signature dates below (the "Effective Date") , by and between INDIAN RIVER COUNTY
BOARD OF COMMISSIONERS , having a mailing address of 1800 27 1h Street, Vero Beach ,
Florida 32960 (" Licensor") , and PINNACLE TOWERS LLC , a Delaware limited liability
company , formerly known as Pinnacle Towers Inc . prior to a State of Delaware conversion on April
7 , 2004 ( "Licensee") .
WITNESSETH :
WHEREAS , Licensor and Sandab Communications Limited Partnership II , a Delaware
limited partnership (" Sandab") entered into that certain License dated March 17, 1992 (the "Original
License Agreement") for the nonexclusive license to use certain real property consisting of
approximately 48 , 100 square feet in Vero Beach, Indian River County, Florida, together with access
and utility easements appurtenant thereto (the "Licensed Premises ") , as more particularly described
in the Original License Agreement which is recorded at Official Records Book 1214 , Page 2579 of
the Official Public Records of Indian River County , Florida ; and
WHEREAS , the Original License Agreement was amended by that certain Amendment
dated June 22 , 1993 ("First Amendment") by and between Licensor and Sandab ; and
WHEREAS , the Original License Agreement was further amended by that certain Second
Amendment to License dated June 6 , 2006 (" Second Amendment") by and between Pinnacle Towers
LLC , successor in interest to Pinnacle Towers , Inc . by way of a Delaware conversion, assignee to
Sandab and Licensor (the Original License Agreement, First Amendment and Second Amendment
shall be collectively referred to herein as the "License Agreement" ) ; and
WHEREAS , the License Agreement has an term that will expire on June 21 , 2023 ("Existin
Term") , and Licensor and Licensee desire to enter into this Amendment in order to amend the
License Agreement to provide for, among other things , an extension of the term of the License
Agreement for a period of fifteen ( 15 ) years beyond the Existing Term, upon the terms and
conditions more fully set forth herein .
NOW THEREFORE , for the mutual covenants and premises herein , and other good and
valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the
undersigned parties , intending to be bound , hereby agree as follows :
1 . Recitals . The foregoing recitals are true and correct and are hereby made a part
hereof for all purposes .
2 . Status of Parties/Estoppel . The parties acknowledges that the License Agreement
is in full force and effect and the parties do not have any presently existing claims against each other
or any offsets against rent due under the License Agreement . There are no (i) defaults of Licensee
under the License Agreement, or (ii) existing circumstances which with the passage of time, or
notice, or both , would give rise to a default under the License Agreement .
Site Name : Vero Beach ( Old Dixie Hwy) 1
BU# : 870578 and 870579
3 . Defined Terms . Any capitalized terms not defined herein shall have the meanings
ascribed to them in the License Agreement .
4 . Term Commencement Date . The parties hereby ratify and affirm that the
commencement date for the term of the License Agreement was June 22 , 1993 .
5 . Term of License . The License Agreement currently provides for a term of thirty
( 30 ) years with an expiration date of June 21 , 2023 . The License Agreement is hereby amended to
provide for a term of forty - five (45 ) years . The new final expiration date will be June 21 , 2038 .
6 . Notice . The License Agreement is hereby amended to provide for notice addresses
for Licensor and Licensee as follows :
LICENSEE : Pinnacle Towers LLC
c/o Crown Castle USA Inc .
Attn : Legal Department
Site ID# 870578 and 870579 — Vero Beach ( Old Dixie Hwy)
2000 Corporate Drive
Canonsburg , PA 15317
LICENSOR : Indian River County Board of Commissioners
180027 1h Street
Vero Beach, Florida 32960
7 . Revenue Share . In addition to the rent currently paid by Licensee to Licensor
pursuant to the License Agreement, if, after the full execution of the License Amendment, Licensee
sublicenses the Licensed Premises to an unaffiliated third party not already a Sublicensee on the
Licensed Premises (each a " Future Sublicensee " ) , Licensee agrees to pay to Licensor twenty-five
percent (25 % ) of the rental payments actually received by Licensee from such Future Sublicensee
( excluding any reimbursement of taxes , construction costs , installation costs , revenue share
reimbursement or other expenses incurred by Licensee) (the " Additional Rent " ) within thirty (30)
days after receipt of said payments by Licensee . Upon written request of Licensor and not more than
once annually, Licensee shall provide a statement of rent to Licensor .
8 . Annual Rent Adiustment . Commencing on January 1 , 2012 and annually on
January l st , throughout the remainder of the License Agreement thereafter ( each an " Adjustment
Date " ) , the monthly rent shall increase by the greater of (i ) the amount equal to the change in the
Consumer Price Index -All Urban Consumers for the South Region ( " CPI -U , South Region " ) during
the immediately preceding year or (ii) Five Hundred Dollars ($ 500 . 00) . The change in the
Consumer Price Index shall be determined by dividing the CPI -U , South Region indicator,
published three (3 ) months prior to the Adjustment Date , by the CPI- U , South Region indicator,
published one ( 1 ) year and three (3 ) months prior to the Adjustment Date , and multiplying the
resultant number by the monthly lease rental amount of the most recent rent. Such rent escalations
shall replace any rent escalations currently in the License Agreement .
Site Name : Vero Beach ( Old Dixie I lwy ) 2
BU# : 870578 and 870579
9 . Future Rent Increase . As further consideration of Licensor entering into this
Amendment, on June 22 , 2023 the annual rent shall increase by an amount equal to ten percent
( 10 %) of the annual rent currently in effect. Licensee shall pay the prorated amount of such
increase for the remainder of the current year to Licensor on or before June 22 , 2023 .
10 . Licensor Additional Space . The License currently provides Licensor two (2 ) free
antenna spaces on the tower described as Business Unit # 870578 , the 477 . 0 ft . tower, and one free
antenna space on the tower described as Business Unit 4870579 , the 290 . 0 ft . tower . Licensor
desires to install an additional antennae on a third free space on Licensee ' s tower described as
Business Unit # 870578 . In addition , the License provides for two 2 ' x 2 ' spaces within Licensee' s
building ( " Building " ) . Licensor desires a third free space for transmitter equipment within the
Building on the Licensed Premises . So long as Licensor is not in default of the License Agreement,
Licensor shall have the right to use additional space on the tower described as Business Unit
# 870578 and space within the Building for a term coterminous with the License at a location(s) to
be determined and agreed upon by Licensor and Licensee prior to commencement of any
construction at the Licensed Premises .
11 . Licensor Contractor. Licensee agrees to hire a contractor selected by Licensor to
complete pre- installation and installation services of Licensor ' s future equipment at the expense of
Licensor ; provided Licensor ' s selected contractor undergoes and is accepted through Licensee ' s
approval process and evidence of insurance acceptable to Licensee is provided to Licensee by the
selected contractor . Licensor shall provide Licensee a Purchase Order that includes contractor
information, scope of work and the agreed to pricing prior to any construction at the Licensed
Premises .
12 . Pre- Construction . Prior to Licensor commencing the tasks set forth in Paragraph
10 above , Licensor shall provide Licensee :
a. a copy of the building permit or in the alternative , a copy of the "No BP
Required " Letter ;
bo a copy of final construction drawings reasonably acceptable to Licensee ;
c . Licensee ' s " zero dollar" site license agreement executed by Licensor that
defines the existing equipment and equipment being added that belongs to
Licensor .
13 . Interference . Licensee agrees that neither Licensee nor Licensee' s other users of the
Licensed Premises controlled or owned by Licensee , whose equipment is installed or modified
subsequently to Licensor ' s Equipment ( " Subsequent Use " ) shall permit their equipment to interfere
with Licensor ' s permitted transmissions or reception . In the event that Licensor experiences RF
interference caused by such Subsequent Use , Licensor shall notify Licensee in writing of such RF
interference and Licensee shall cause the party whose Subsequent Use is causing said RF
interference to reduce power and/or cease operations in order to correct and eliminate such RF
interference within seventy-two (72) hours after Licensee ' s receipt of such notice .
Site Name: Vero Beach ( Old Dixie Hwy) 3
BU# : 870578 and 870579
14 . Termination . Licensee may terminate the License Agreement at any time by notice
to Licensor without further liability if Licensee , in its sole discretion, determines that it will be
unable to use the Licensed Premises . Licensee shall provide Licensor with at least one hundred
eighty ( 180) days prior written notice of Licensee' s intent to terminate the License Agreement.
Upon termination , any prepaid rent will be retained by Licensor unless such termination is due to
Licensor ' s failure of proper ownership or authority, or such termination is a result of default by
Licensor .
15 . Tower(s) Conveyance/Removal . Upon expiration or termination of the License
Agreement , Licensee may convey the tower(s) to Licensor provided Licensor uses the tower solely
for Licensor ' s equipment . In the event Licensor notifies Licensee in writing that it does not want
the tower(s) , Licensee shall , within a reasonable time , remove all above ground improvements and
restore the Licensed Premises as nearly as reasonably possible to its original condition , without,
however, being required to replace any trees or other plants removed, or alter the then existing
grading .
16 . Rijzht of First Refusal . If, during the License term , Licensor receives a written
offer and is considering accepting the offer from any entity (along with any of its affiliates) that
owns and operates towers or other facilities for wireless telecommunications or any entity that is in
the everyday business of acquiring Licensor ' s interest in the License Agreement and said entity
desires to acquire any of the following interests in all or a portion of the Licensed Premises (for the
purposes of this License Agreement, Licensed Premises shall include the current License area of
approximately 1 . 10 acres of land) : ( i) fee title , (ii) a perpetual or other easement, (iii) a License, (iv)
any present or future possessory interest, (v) any or all portions of Licensor ' s interest in this License
Agreement including but not limited to the rent or revenue derived herefrom or other interest in the
License Agreement , or (vi ) an option to acquire any of the foregoing, Licensor shall provide written
notice to Licensee of said offer (" Licensor ' s Notice") . Licensor ' s Notice shall include the
prospective buyer ' s name , the purchase price being offered , and other consideration being offered,
the other terms and conditions of the offer, the due diligence period and the proposed closing date .
Licensee shall have a right of first refusal to purchase , at its election and on the terms
and
conditions as in Licensor ' s Notice a fee simple interest in the Licensed Premises or a perpetual
easement for the Licensed Premises . If Licensee does not exercise its right of first refusal by written
notice to Licensor given within thirty ( 30) days , Licensor may sell the property described in
Licensor ' s Notice .
IT IRS Form W-9 . Licensor agrees to provide Licensee with a completed IRS Form
W- 9 , or its equivalent, upon execution of this Amendment and at such other times as may be
reasonably requested by Licensee . In the event Licensor' s property on which the Licensed Premises
is located is transferred, the succeeding licensor shall have a duty at the time of such transfer to
provide Licensee with a completed IRS Form W- 9 , or its equivalent, and other related paper work to
effect a transfer in rental to the new licensor. Licensor ' s failure to provide the IRS Form W- 9
within thirty (30) days after Licensee ' s request shall be considered a default and Licensee may take
any reasonable action necessary to comply with IRS regulations including, but not limited to ,
withholding applicable taxes from rent payments .
Site Name : Vero Beach ( Old Dixie Hwy) 4
BU# : 870578 and 870579
18 . Authority , Licensor represents and warrants that, as of the date of this Amendment,
Licensor is duly authorized and has the full power, right and authority to enter into this Amendment
and to perform all of the Licensor ' s obligations under this Amendment and to execute and deliver
this Amendment to Licensee .
19 . Remainder of License Agreement Unaffected . In all other respects , the remainder
of the License Agreement shall remain in full force and effect . Any portion of the License
Agreement that is inconsistent with this Amendment is hereby amended to be consistent .
20 . Headings . The headings contained in this Amendment are for reference purposes
only and shall not modify or affect this Amendment in any manner whatsoever.
21 . Entire License Agreement . This Amendment supersedes that certain Letter
Agreement by and between Licensor and Licensee dated September 8 , 2011 and in case of any
conflict or inconsistency between the terms and conditions contained in the Letter Agreement and
the terms and conditions contained in this Amendment, the terms and conditions in this Amendment
shall control .
22 . Counterparts . This Amendment may be executed in counterparts , all of which
together shall constitute one agreement binding on all the parties hereto , notwithstanding that all
such parties are not signatories to the original or same counterpart .
23 . Recordation . Licensee , at its cost and expense , shall have the right to record a
memorandum of this Amendment in the public records of Indian River County , Florida, at any time
following the execution of this Amendment by all parties hereto .
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SIGNATURE PAGES BEGIN ON FOLLOWING PAGE ]
Site Name : Vero Beach (Old Dixie Hwy) S
BU# : 870578 and 870579
IN WITNESS WHEREOF , Licensor and Licensee have duly executed this Amendment as
of the Effective Date .
Signed , sealed and delivered in the LICENSOR :
presence oZtrot f:
INDIAN RIVER COUNTY BOARD OF, • - 'MtSSiON R..,�
• VO . S a
COMMISSIONERS ;`� :• t�v;�
WA ;y
Print Name : /i., A . ,e rrA1 G rLFA
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Name : Bob Solari •�OiA . 6IV . R
Print Name : V" ► 1 ( � I r"-1 I > � � y� Title : Chairman " " " "RNO ON A
Date : November 81 2011
:APPROVED A5 TO FOkf%tal
AND L ALU
STATE OF Florida sy
ss WILLIAM K. DEIRAAt
COUNTY OF Indian River County DEPUTY COUNTY ATTGkMf
The foregoing Third Amendment to License was acknowledged before me this 8th day of
November 2011 , by Bob Solari as the
Chairman of INDIAN RIVER COUNTY BOARD OF COMMISSIONERS ,
for and on behalf of said entity and for the consideration , intent and purposes set forth in
the
foregoing Third Amendment to License . He/ She is personally known to me or has produced
as identification .
In Witness Whereof, I have hereunto signed this acknowledgment with said appearer and said
witnesses, on the date set forth above .
Signature of Notary Public
� tr � Y' t Oil In ' IS+CY'
Printed Name of Notary Public :
My Commission Expires : [ Seal ] � tP; ; pualo
TERRI COLLINS-LISTER
* * MY COMMISSION # EE 012487
r 3L' I ®r14 EXPIRES : October 30, 2014
kr1 F FtOpe Baided Thru BudgM Notey Services
Site Name : Vero Beach (Old Dixie Hwy) 6
BU# : 870578 and 870579
Signed , sealed and delivered in the LICENSEE :
presence of:
PINNACLE TOWERS LLC ,
a Delaware limited liability company,
Print Name : KAtt&j CLAu Son formerly known as Pinnacle Towers Inc . , a
Delaware corporation
By : 400
//,9� Name :
Print Name : / Ulij / f� l°✓SCx�r Title :
Date :
STATE OF
ss
COUNTY OF
U64; foregoing Third Amendment to License was ack wl ged before me this 2# day of
K , 2011 , by b L 4 W tC1(- as the
SET Nb K of PINNACLE TOWERS LUO , a Delaware limited liability
company , formerly own as Pinnacle Towers Inc . , a Delaware corporation , for and on behalf of said
entity and for the consideration , intent and purposes set forth in the foregoing Third Amendment to
License . He/ She is personally known to me on .
In Witness Whereof, I have hereunto signed this a Nknowledgment with said appearer and said
witnesses , on the date set forth above .
I
Signat re otary Publ
r( w kad
Printed Name of Notary Publ :
My Commission Expires : [ Seal ]
PGa�o�- - KARINAANGULO
=_ NotatVPublic stateofTexas
; �1r` MyrommissionExpires
September 19, 2012
Site Name : Vero Beach ( Old Dixie Hwy ) 7
BU # : 870578 and 870579