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HomeMy WebLinkAbout2009-121Lessee's Site ID: Indian River Sea Oaks, No. 69022 Sublessee's Site ID: Vero Disney TRI -PARTY SUBLEASE AGREEMENT &j_ This Tri -Party Sublease Agreement ("Agreement") is made and entered into this day of 2009 by and among INDIAN RIVER COUNTY, a political subdivision of thState of Florida, with a mailing address located at 1801 27th Street, Vero Beach, Florida 32960, hereinafter designated "Owner", and VERIZON WIRELESS PERSONAL COMMUNICATIONS LP dib/a Verizon Wireless, with its principal office located at One Verizon Way, Mail Stop 4AW 100, Basking Ridge, New Jersey 07920, hereinafter designated "Lessee", and NEW CINGULAR WIRELESS PCS, LIX, a Delaware limited liability company with its mailing address located at 12555 Cingular Way, Alpharetta, Georgia 30004, hereinafter referred to as "Sublessee". RECITALS WHEREAS, Owner is the owner of certain real property situated at 8865 N, Flwy, AIA, Vero Beach, Indian River County, Florida 32963 (hereinafter the "Property"). WHEREAS, Owner and Lessee entered into that certain Land Lease Agreement dated February 20, 2007 (hereinafter referred to as the "Prime Lease"), attached hereto as Exhibit 1, whereby Lessee leased a portion of the Property legally described in the Prime Lease (herein the "Premises") for the purpose of constructing and operating a communications tower and facilities. WHEREAS, Sublessee desires to sublease from Lessee both ground space and tower space to install, maintain and operate a cornmuni cations facility. WHEREAS, Section 32 of the Prime Lease requires any sublessee co -locating within the Premises to execute this Agreement. WHEREAS, this Agreement shall constitute Lessee's written notice to Owner of a sublease of the Premises as required by Section 32 of the Prime Lease. NOW, THEREFORE, for and in consideration of the covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: ,1 The foregoing Recitals are true and correct and are incorporated herein by reference. 2. Pursuant to Section 32 of the Prime Lease, Sublessee ackii wlcd cs and agrees that any sublease rent due under that certain Supplement Agreement datedL,C, 2009, by and between Lessee and Sublessee, hereinafter referred to as the `�ublease", is to be split equally between Owner and Lessee and that Sublessee is obligated on the first (IS`) day of each month during the term of the Sublease to pay Owner for its fifty percent (50%) share of said rent. Upon determination of the Commencement Date of the Sublease by Lessee and Sublessee, Sublessee shall promptly thereafter provide written confirmation of said Commencement Date to Owner. In the event Sublessee fails to timely make any payment to Owner due under this Agreement, and such failure continues for more than fifteen (15) days after receipt of written notice froth Owner to Sublessee, then Sublessee agrees that Owner shall be entitled to exercise against Sublessee all remedies available to a landlord under a lease in the State of Florida, including the right to terminate the Sublease. The foregoing shall not in any way limit Lessee's rights and remedies against Sublessee for Sublessee's failure to perform under the Sublease. 3, Sublessee's rights under the, Sublease and its use of the Premises are subject in all respects to the terms and conditions of the Prime Lease, including without limitation, the interference provisions set forth in Section I I of the Prime Lease-, provided, however, Sublessee shall not be obligated for monetary obligations payable by Lessee to Owner tinder the Prime Lease except as contemplated in the Sublease and this Agreement. 4. All notices hereunder must be in writing and shall be deemed validly given if sent by certified inail, return receipt requested or by commercial courier, provided the courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt from the sender, addressed as follows (or any other address that the party to be notified may have designated to the other by notice delivered in accordance with this paragraph): Owner: Indian River County Director of Utility Services County Administration Building 180127"' Street Vero Beach, Florida 32960 Lessee: Verizon Wireless Personal Communications LP d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate Sublessee: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Re: Coll Site # Vero Disney; Cell Site Name: Vero Disney Fixed Asset #: 10 126640 12555 Cingular Way Alpharetta, GA 30004 With a copy to: New Cingular Wireless PCS, LLC Attn: Legal Depai-tinent Re: Cell Site ft Vero Disney; Cell Site Name: Vero Disney Fixed Asset 11: 10126640 1025 Lenox Park Blvd., 5"' Floor Atlanta, GA 30319-5309 Notice shall be effective upon mailing or delivering the same to a commercial courier, as permitted above. 5. In the event the Prirnc Lease expires or is otherwise terminated, Owner and Sublessee may agree on a new lease agreement for Sublessee's use ofspace at the Property. With a copy to: New Cin&,ular Wireless PCS, LLC Attn: Legal Depailinent Re: Cell Site 4 Vero Disney; Cell Site Name: Vero Disney Fixed Asset#: 10126640 1025 Lenox Park Blvd., 5t" Floor Atlanta, GA 30319-5309 Notice shall be effective upon mailing or delivering the same to a commercial courier, as permitted above. 5, In the event the Prime Lease expires or is otherwise terminated, Owner and Sublessee may agree on a new lease agreement for Sublessee's use of space at the Property, IN WITNESS HEREOF, the parties hereto have executed this Agreement as of tete (late first written above. WIT NES ES: ti Naive: Bonnie L. 1 t4 B N WITNESSES: By;_ -LL By: Name:%d�rry G`�l P6085666 v3 LESSEE: VLRIZON WIRELESS PERSONAL COMMUNIC ' TIONS P el s cl/la/a i�el" t n�lr �.. ..._.._. By Name: la s l .Leu negci Title: Area Vice President. Network Date OWNER: INDI RIVER COUNTY Y' Name:_ Wesley S. vis `l'itle:Chairman Date approved by 13C:C ":_. Mdy��CJfJ� Attest Jeff re rC. &�Y`t n C, e;k I oil 1-t Title: Deputy Clerk )proved: _ N le: County Administrator Aj vtcl s to f m ani l dal Suficurcy.: anie: arias Iaell Title: Senior Assistant Couj4y Attorney SUBLESSEE: New Ciugular Wireless C LC By: AT&T Mobility Cor r it ii Its: Manager By: —/ Narne:—__— Carlos Sanchez Title: Network Executive Director hate: - lj;W1017 EXHIBIT I Prime Lease See Attached LESSEE Site I.D. LAND LEASE AGREEMENT This Agreement, made this 20th day of February River County, a Political subdivision Of the State 0 20 07 between Indian f Florida, with its mailin�addrcss located at 1840 25" Street, Vero Beach FL 32960, hereinafter designated LESSOR, and VERIZON WIRELESS PERSONAL COMMUNICATIONS LP d1bla Verizon Wireless, with its principal Office located at One Verizon Way, Basking Ridge, New Jersey 07920, hereinafter designated LESSEE. The LESSOR and LESSEE are at times collectively referred hereinafter as the "Parties" or individually as the,'party-, IT to 1. MLM_1SES. LESSOR hereby leases to LESSEE a portion of that certain parcel of property (the entirety of LESSOR's property is referred to hereinafter as the Property), located at 8865 N. Hwy. AIA, Vero Beach, Indian River County, Florida 32963 and being described as a 25° by 100' parcel containing 2500 square feet, as described in Deed Book 843 at Page 2237, as recorded in the Recorder's Office of Indian River County, State of Florida, together with the non-exclusive right for ingress and egress, seven (7) days a week twenty-four (24) hours a day, 'on foot or motor vehicle, including trucks, and for the installation and maintenance of utility wires, poles, cables, conduits, and Pipes over, under, or along a fifteen foot (15') wide right-of- way extending from the nearest public right-of-way, N. Ilwy. AIA, to the demised premises. The demised premises and right Of way for ingress and egress and light of way for utilities (hereinafter collectively referred to as tile "Premises") are as described herein in Exhibit A attached hereto and made I part hereof, and as shown on that certain survey attached hereto and incorporated herein as Exhibit B. In the event any public utility is unable to use the aforementioned right-of-way, the LESSOR hereby agrees to grant an additional right-of-way either to the LESSEE or to the public Utility at no cost to the LESSEE. 2. SURVEY. LESSOR has granted to LESSEE the right to survey the Property and the Premises, and said survey is attached hereto and made a pan hereof as Exhibit B, and shall control in the event of boundary and access discrepancies between it and Exhibit A, LESSEE shall provide LESSOR with a copy of "as -built" plans depicting its initial installations at the Premises promptly upon completion of construction thereof. Cost for such work shall be borne by the LESSEE. 3. TERM. 3.1 -This Agreement shall be effective as of the date of execution by both pal -ties, provided, however, the initial term shall be, for five (5) years and shall commence On the Commencement Date (as hereinafter defined) at which time rental payments will be due at an annual rental of subject to increase as set forth in this Agreement, including any applicable sales tax, ("'rent"), Rent shall be paid annually in One lump sum payment on the Commencement Date (as hereinafter defined), and oil each successive anniversary Of the Commencement Date during the term of this Agreement, in advance, to LESSOR Or to such other person, ficin Or Place as the LESSOR may, frorn three to time, designate in writing at least thirty dare. In the event rent is (30) days in advance of any rental paymel)t 'lot received wit1lill ten (10) days Of the due date, LESSEE shall pay a late charge in the amount of, The Commencement Date is defined as the first (I") day of the Month following the date this Agreement is executed by the pal -ties or the first (0) day of the month following tile date LESSEE is a permit by the governmental agency charged with issuing such permits, whichevgraernteevd entbocuildingcurs last; provided, however, in no event shall the Commencement Date occur later than the first (I't) day of the month following the date, that is three (3) months after the date this Agreement is executed by the Parties. 3.2. LESSEE shall furnish and install a separate electrical meter at the premises for the measurement of electrical power used by LESSEE's installation, LESSEE shall Pay the local utility provider directly for its power consumption at the Promises. 4. EX �FEN S I �QN S, This Agreement shall automatically be, extended for four (4) additional five (5) year terms unless the LESSEE terminates it at the end of the then current term by giving the LESSOR written notice of the intent to terminate at least six (6) months prior to the end of the then current term. 5. ANNUAL RE -NT INCREASE. Commencing on the first annual anniversary Of the Commencement Date and on each annual anniversary thereafter during the term of this Agreement I including all extension terms), annual rent shall increase by an amount equal to of the annual rent due for the immediately preceding lease year. INTENTIONALLY` OMITTED, 7. USE,, GOVERNMENTAL APPROVALS. LESSEE shall use the Premises for the purpose of constructing, maintaining and operating a stealth flagpole, up to eighty (80) feet high, wireless communications facilities and uses incidental and all necessary appurtenances, The stealth flagpole tower shall look and function as a flagpole with all antennae located under an outer skin of fiberglass, plastic or similar material which will be conducive to LESSEE's use of the stealth flagpole as permitted in this Agreement. Entrance to the exterior skill of the stealth flagpole will be below ground rather than by elevated waveguide bridges. Tile flag will be of such size and quality to gain the reasonable approval of the Indian River County (tile ,County-). The flag and stealth flagpole will be illuminated at night at the expense of LESSEE and will be fitted with hardware so the flag thereon can be flown at half mast and/or lowered when necessary. A security fence consisting of chain link construction or similar but comparable construction may be placed around the Perimeter of the Premises at the discretion of LESSEE (not including the access easement), All improvements shall be at LESSEE's expense and the installation of all improvements shall be, at the discretion and option of the LESSEE. LESSEE's initial installations shall be subject to LESSOR's P'nior written approval, which approval shall not be unreasonably withheld, delayed or conditioned, Thereafter, LESSEE shall have the right to t 0 replace, repair, add or otherwise modify its initial installations or any portion thereof wi h ut LESSOR's approval, whether the equipment is specified or not on any exhibit attac during the term of this Agreement, provided LESSEE does nhod hereto, not install any equipment outside the boundaries of the Promises. In the event LESSOR's P agrees not to unreasonably withhold, r"or written WrOval iS required, LESSOR Pr•cn)ises, including the delay or condition its consent, LESSEE W1 11 Inaintain the aMearance and functioning of the flag and flagPOIC according to t11e specifications contained herein, in a good condition reasonable wear and tear excepted. LESSOR will maintain tile Property, excluding the Premises, ill good condition, reasonable wear and tear excepted. It is understood and agreed that LESSEE,s ability to use the Premises is contingent upon its obtaining after tile execution date Of this Agreement all Of the certificates, Permits and other approvals (collectively the "Governmental Approvals") that may be required by any Federal, State or Local authorities as well as satisfactory soil boring tests which will permit LESSEE use of the Premises as set forth above. LESSOR shall cooperate with LESSEE in its effort to obtain suet] approvals and shall take no action which would adversely affect the status of the Property with respect to the proposed Use by LESSEE. LESSEE, upon LESSOR's reasonable, request from time to time, will provide LESSOR with current copies of its Governmental Approvals relating to its use of the Premises. In tile event that any Of Such applications for such Governmental Approvals should be finally rejected or any Governmental Approval issued to LESSEE- is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority or soil boring tests are found to be unsatisfactory so that LESSEE in its sole discretion will be unable to use the Prerilises for its intended purposes or the LESSEE determines that the Premises is no longer technically compatible for its intended use, LESSEE shall have the right to teirWnate this Agreement. Notice of the LESSEE's exercise of its right to terminate shall be given to LESSOR in writing by certified mail, return receipt requested, and shall be effective upon the mailing of such notice by the LESSEE. All rentals paid to said termination date shall be retained by the LESSOR. Upon such termination, this Agreement shall become null and void and all the Parties shall have no further obligations including the payment of money, to each other, 8. INDEMNIFICATION. In consideration Of the still, of Fifteen and 00/100 Dollars ($15.00), the receipt and sufficiency Of which is acknowledged by LESSEE, LESSEE shall indemnify, defend, and hold harmless LESSOR and its agents and employees from and against all liabilities, claims, damages, losses, and expenses, including attorney's fees, arising out of or resulting from LESSEE's use of the Premises, provided that any such liability, claim, damage, loss, or expense: a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property, including the loss f use resulting therefrom, b) i misconduct of LESSEE, its agents, employees and caused by any negligent act or intentional n 0 gs contractors; and c) is not caused by the negligence or willful misconduct of LESSOR, 9, INSURANCE -LESSOR and LESSEE hereby waive any and all rights of action for negligence against the other which may hereafter arise on account of damage to the Premises or to the Property, resulting from any fire, or other casualty of the kind covered by standard fire insurance, policies with extended coverage, regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the Parties, or either of them. During the term of this Agreement, LESSOR shall procure, pay for, and maintain comprehensive and ty limits property liability insurance with liabili ve, general liability limit for injury to or death of one Or more mits Of not less than $2,000,000 combined single e persons in any 0110 Occurrence and for damage or destruction to property in any one occurrence. Further, during the term of this Agreement, LESSEE shall procure, pay for, and maintain at least the following insurance coverages and limits, evidenced by delivery to LESSOR of certificates of ins listing coverages and H171its, Urance executed hy 00 inSUT018 said policieS: exPrati017 dates and lei7ns of policiesj and listing �-/ 811 caaiers iSSUi,,g (a) Workers' Compensation in at least the limits as required by law; Employers, Liability Insurance of not less than $100,000,00 for each accident. (b) Commercial General Liability Insurance including, but not limited to Independent Contractor, Contractual, Premises/Operations, Products/Completed Operation and Personal Injury covering the liability assumed tinder the indemnification provisions of this Agreement, with limits of liability for personal injury and/or bodily injury, including death, of not less than $2,000,000.00, each occurrence; and properly damage of not less than $1,000,000-00, each occurrence. (Combined single limits Of not less than $2,000,000.00, each occurrence, will be acceptable unless otherwise stated). Coverage shall b o an ccu n Property Damage coverage and Fire Legal basis, and the policy shall include Broad Form I e n "o rre ce" Liability of not less than $50,000.00 per occurrence, unless otherwise stated by exception herein. (c) Commercial Automobile and Truck liability covering owned, hired, and non owned vehicles with combined single limits of not less than $2,000,000.00, each occurrence, Coverage shall be on an "occurrence" basis, such insurance to include coverage for loading and unloading hazards, (d) Builder's Risk Insurance LESSEE shall procure or cause the Contractor to maintain builder's tisk insurance ("all risk") with limits equal to one hundred percent (100/®) of the completed 'value of the structure(s), building(s), or addition(s), The Policy must contain an endorsement (or the equivalent) to provide coverage during transit and installation. Each insurance policy shall include the following conditions by endorsement (or the equivalent) to the policy: (1) The insurance provider shall endeavor to give LESSOR thirty (30) days PriOl' notice of cancellation of coverage, by mail to: Indian River County, Purchasing Division, 2625 19th Avenue, Vero Beach, FL 32960-3335, (2) The insurance provider shall have no recourse against LESSOR for payment of premiums or assessments for any deductibles which all are at the sole responsibility and risk of LESSEE, (3) The term "LESSOR" shall include all Authorities, Boards, Bureaus, Commissions, Divisions, Departments, and Offices of Indian River County and individual members, employees thereof in their official capacities, and/or while acting on behalf of Indian River County, (4) The policy clause "Other Insurance', shall not apply to any insurance coverage currently held by LESSOR to any such future coverage, or to LESSOR's self insured retention of whatever nature as relates to LESSEE's negligence. (a) Workers' Compensation in at least the , limits as required by law; Employers' Liability Insurance of not less than $10(),000,00 for each accident. (b) Commercial General Liability Insurance including, but not limited to, Independent Contractor, Contractual, PreMises/Operations, Products/Completed Operation and Personal Injury covering the liability assumed tinder the indemnification provisions of this Agreement, with limits of liability for personal injury and/or bodily injury, including death, of not less than $2,000,000,00, each Occurrence; and property damage of not less that, $1,000,000-00, each occurrence. (Combined single limits of not less than $2,000,000,00, Occurrence, will be acceptable unless otherwise stated), each Coverage shall be on an "Occurrence" basis, and the policy shall include Broad Form Property Damage coverage and Fire Legal Liability of not less than $50,000.00 per Occurrence, unless otherwise stated by exception herein. M Commercial Automobile and Truck liability covering owned, hired, and non owned vehicles with combined single limits of not less than $2,000,000.00, each occurrence. Coverage shall be on an "occurrence" basis, such insurance to include coverage for loading and unloading hazards. (d) Builder's Risk Insurance LESSEE shall procure or cause, the contractor to maintain builder's risk insurance ("all risk") with limits equal to one hundred percent (100%) of the completed value of the structure(s), building(s), or addition(s). The policy must contain an endorsement (or the equivalent) to provide coverage during transit and installation, Each insurance policy shall include the following conditions by endorsement (or the equivalent) to the policy: (1) The insurance provider shall endeavor to give LESSOR thirty (30) days Prior notice of cancellation of coverage, by mail to: Indian River County, Purchasing Division, 2625 19th Avenue, Vero Beach, FL 32960-3335. (2) The insurance provider shall have no recourse against LESSOR for Payment of premiums or assessments for any deductibles which all are at the sole responsibility and risk of LESSEE. (3) The term "LESSOR" shall include all Authorities, Boards, Bureaus, Commissions, Divisions, Departments, and Offices of India,, River County and individual members, employees thereof in their official capacities, and/or while acting on River County. behalf of Indian (4) The Policy clause "Other Insurance" shall not apply to any insurance coverage currently held by LESSOR to any such future coverage, or to LESSOR's self insured retention of whatever nature as relates to LESSEE's negligence. sale by the LESSOR of the portion of this Property underlying the right-of-way herein granted shall be under and subject to the right of the LESSEE in and to Such right -Of -way, is. QUIET FNJnYmPxn,. LESSOR covenants that LESSEE, onpaying the rent and performing the, covenants shall peaceably and quietly have, hold and enjoy the Premises. 16. TITLE, LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute this Agreement. LESSOR further covenants that there are no other liens, judgments or impediments of title on the Property or affecting LESSOR's title to the same and that there are no covenants, casements, restrictions or agreements binding on LESSOR or the Property which prevent the use of the Premises by the LESSEE as set forth above. 17, IN'["1�.3RATION, It is agreed and understood that this Agreement contains all agreements, promises and understandings between the LESSOR and LESSEE and that 110 verbal or oral agreements, promises or understandings shall be binding upon either the LESSOR or LESSEE in any dispute, controversy or proceeding at law, and any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the Parties. In the event any provision of the Agreement is found to be invalid or unenforceable, such finding shall not effect the validity and enforceability of the remaining provisions of this Agreement. The failure of either Party to insist upon strict performance of any of the terms or conditions of this Agreement or to exercise any of its rights under the Agreement shall not waive such rights and such Party shall have the right to enforce such rights at any time and take such action as may be lawful and authorized under this Agreement, either in law or in equity, 18- GOVERNING LAW. This Agreement and the Performance thereof shall be governed, interpreted, construed, and regulated by the laws of the State in which the Property is located. Venue for any lawsuit brought by either 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, 19. ASSIGNMENT, This Agreement may be sold, assigned or transferred by the LESSEE without any approval Or consent of the LESSOR to the LESSEE's principal(s), affiliates, or any subsidiary of LESSEE, its principal(s) or affiliates; to any entity which acquires all or substantially all of LESSEE's assets in the market defined by the Federal Communications Commission in which the Property is located by reason of a merger, acquisition or other business reorganization; or to any entity which acquires or receives an interest in the majority of communication towers of the LESSEE in the market defined by the Federal Communications Commission in which the Property is located. LESSEE agrees to provide written notice of such sale, assignment, or transfer to LESSOR as soon as reasonably practicable. As to other panics, this Agreement may not be sold, assigned or transferred without the prior written consent of the LESSOR, which such consent will not be unreasonably withheld, delayed or conditioned. LESSEE may sublet the Premises within its sole discretion, upon written notice toSSOR Any sublease that is entered Mt© by LE, to the SSEE shall be subject LE Pro visiOns of this Agreement and shall be binding upon the successors, assigns, heirs and legal representatives of the respective parties hereto, 20. NOBS. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by Commercial courier, provided the courier's regular business is delivery service, and provided further that it guarantees delivery to the addressee by the end of the next business day following the co tier's receipt from the sender, addressed as follows (or any other address that the Party to be uotified may have designated to the sender by like notice): LESSOR: Indian River County Director Of Utility Services County Administration Building 1840 25th Street Vero Beach, Florida 32960 Attention: Director of General Services LESSEE: Verizon Wireless Personal Communications LP d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate Notice shall be effective upon mailing or delivering the same to a commercial courier, as permitted above, 21. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of the Parties hereto, 22. SUBORDINATION AND NON, -DISTURBANCE. At LESSOR's option, this Agreement shall be subordinate to any mortgage or other security interest by LESSOR which from time to time may encumber all or part of the Property or right-of-way; provided, however, every such mortgage or other security interest shall recognize the validity of this Agreement in the event of a foreclosure of LESSOR's interest and also LESSEE's right to remain in occupancy of and have access to the Premises as long as LESSEE is not in default of this Agreement. LESSEE shall execute whatever instruments may reasonably be required to evidence this subordination clause. In the event the Property is encumbered by a moilgage or other security interest, the LESSOR immediately after this Agreement is executed, will obtain and furnish to LESSEE, a non -disturbance agreement for each such mortgage or other security interest in recordable form. In the event the LESSOR defaults in the payment and/or other performance of any mortgage or other security interest encumbering the Property, LESSEE, may, at its sole option and without obligation, cure or correct LESSOR's default and upon doing so, LESSEE shall be subrogated to any and all rights, titles, liens and equities of the holders of such mortgage or security interest and the LESSL,E shall be entitled to deduct and setoff against all rents dial n)"Y otherwise become due under this Agrcqfn0jjt the ha such defaults, surns paid by LESSEE to Cilie Of colrect and shall be binding upon the successors, assigns, heirs and legal representatives of the respective parties hereto. M EQ-11—CES - All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courier, provided the courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt from the sender, addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice): LESSOR: Indian River County Director of Utility Services County Administration Building 1840 25th Street Vero Beach, Florida 32960 Attention: Director of General Services LESSEE: Verizon Wireless Personal Communications LP d/bla Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention; Network Real Estate Notice shall be effective upon mailing or delivering the sante to a commercial courier, as permitted above, 21. SUCCESSORS, This Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of the Parties hereto. 22, SUBORDINATION AND NON -DISTURBANCE. At LESSOR's option, this Agreement shall be subordinate to any mortgage or other security interest by LESSOR which from time to time may encumber all or part of the Property or right-of-way; provided, however, every such mortgage or other security interest shall recognize the validity of this Agreement in the event of a foreclosure of LESSOR's interest and also LESSEE's right to remain in occupancy of and have access to the Premises as long as LESSEE is not in default of this Agreement, LESSEE shall execute whatever instruments may reasonably be required to evidence this subordination clause. In the event the Property is encumbered by a mortgage or other security interest, the LESSOR immediately after this Agreement is executed, will obtain and furnish to LESSEE, a non -disturbance agreement for each such mortgage or other security interest in recordable fon-n. In the event the LESSOR defaults in the payment and/or other performance of any mortgage or other security interest encumbering the Property, LESSEE, may, at its sole option and without obligation, cure or correct LESSOR's default and upon doing so, LESSEE shall be subrogated to any and all rights, titles, liens and equities of the holders of such mortgage Or security interest and the LEMEE shall be entitled to deduct and setoff against all rentS that may otherwise becorne clue under this Agrooalent such defaults, tile SUMS paid by LESSEE to CUre Or correct 23. RECORDING. LESSOR agrees to execute a Memorandum of this Lease Agreement which LESSEE may record with the appropriate Recording Officer at the sole cost of LESSEE. The date set forth in the Memorandum of Lease is for recording purposes Only and bears no reference to commencement of either tern, or rent payments. 24. D�F�,FAULT. In the event there is a default by the LESSEE with respect to any of the provisions of this Agreement or its obligations under it, including the payment of rent, the LESSOR shall give LESSEE, written notice of such default. After receipt of such written notice, the LESSEE shall have fifteen (15) days in which to cure any monetary default and thirty (30) -monetary default, provided the LESSEE shall have such extended days in which to cure any non D t rt period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and the LESSEE commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion, The LESSOR may not maintain any action or effect any remedies for default against tile LESSEE unless and until the LESSEE has failed to cure the same within the time periods provided in this Paragraph, 25. ENV &ONMENTAL. a. LESSOR will be responsible for all obligations of compliance with any and all environmental and industrial hygiene laws, including any regulations, guidelines, standards, or Policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or concerns as may now or at any time hereafter be in effect, that are or were in any way related to activity now conducted in, on, or in any way related to the Property, unless such conditions of concerns are caused by the activities of the LESSEE. b. LESSOR shall hold LESSEE harmless and indemnify the LESSEE from and assume all duties, responsibility and liability at LESSOR's sole cost and expense, for all duties, responsibilities, and liability (for Payment of penalties, sanctions, forfeitures, losses, costs, or damages) and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is in any way related to: a) failure to comply with any environmental or industrial hygiene law, including without limitation any regulations, guidelines, standards, or policies of ally governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene concerns or conditions as may now or at any time hereafter be in effect, unless such compliance results from conditions caused by the LESSEE; and b) ally environmental or industrial hygiene conditions wising out of or in any way related to the condition of the Property or activities conducted thereon, unless such environmental conditions are caused by the LESSEE. 26. CASUALTY, 11, the event of damage by fire or other casualty to the premises that cannot reasonably be expected to be repaired within fOITY-five (45) days f0lJOWing sarne or, if the Propez-ty is dunaged by fire or other casualty so eXPected to djSjrjjpt LES'SEE'Stilat such damage May OPeratiOns at the Pivildses for more TWOMblybe 11)8)? fOltY-five (45) days$ the,, LESSEE may at any time following such fire or other casualty, provided LESSOR has not completed the restoration required to permit LESSEE to resume its operation at the Premises, with the same force and effect as though the date set termination shall cause this Lease to expire notice () terminate this Lease upon fifteen (15) days written notice to LESSOR, Any such oti f forth in such notice were the date Originally set as the expiration date of this Lease and the parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under this Lease. Notwithstanding the foregoing, all rental shall abate during the period of such fire or other casualty. 27, 9_Q_N_D_E.MNKr10N. In the event of any condemnation of the Property, LESSEE rnay terminate this Agreement upon fifteen (15) days written notice to LESSOR if such condemnation may reasonably be expected to disrupt LESSEEs operations at the Prelydses for more than forty-five (45) days, LESSEE may on its own behalf make a claim in any condemnation proceeding involving the Premises for losses related to the antennas, equipment, its relocation costs and its damages and losses (but not for the loss of its leasehold interest). Any such notice of termination shall cause this Agreement 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 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. 28. SUBMISSION OFLEASE. The submission of this Agreement for examination does not constitute an offer to lease the Premises and this Agreement becomes effective only upon the full execution of this Agreement by the Parties, Each of the Parties hereto warrants to the other that the person or persons executing this Agreement on behalf of such Party has the full right, power and authority to enter into and execute this Agreement on such Party's behalf and that no consent from any other person or entity is necessary as a condition precedent to the legal effect of this Agreement. 29, APPLICABLE, LAWS, LESSEE shall use the Premises as may be required oras perillitted by applicable laws, rules and regulations. LESSON, agrees to keep the Property in conformance with all applicable, laws, rules and regulations and agrees to reasonably cooperate with the LESSEE regarding any compliance required by the LESSEE in respect to its use of the Premises. X a1RV_fVA1.. The provisions of the Agreement relating to indemnification from one Party to the other Party shall survive any termination or expiration of this Agreement, Additionally, any provisions of this Agreement which require performance subsequent to the termination or expiration of this Agreement shall also survive such termination or expiration. 31• !��APTIQNS- The captions contained in this Agreement are inserted for convenience only and are not intended to be part of the Agreement. They shall not affect or be utilized in the construction or interpretation of the Agreement. 32. REVENUE SHARING t 'tSt LESSEE nlay sublease any polljon of the proMiSCS 'YO]e diSCrC6017, UP011 prior Written 110tiCe -'-ESSBE� shall b, to L-C�SSOR, An subjeaSe that "'jeo' 'o' the provisions Of this Agreem Y Is efltered h7to by ClIt and Shall be binding upon the successors, assigns, heirs and legal representatives of the respective parties hereto, The term "Sublease,,, "Sublet", "Sublessee" and any other similar term shall apply to any situation by Which LESSEE allows 41 third party use of the Premises for co -location, whether it be by formal sublease, license or other agreement. All rights and responsibilities Of LESSEE set forth in this Agreement shall be enjoyed by and binding on any Sublessec, In the event LESSEE subleases any Portion of the Property, in accordance with this Agreement, any rental paid by any Sublessce(s) shall be divided between the LESSOR and the LESSEE in the following manner: 50% to LESSOR and 50% to LESSEE, Any Sublessee shall be instructed to pay the foregoing percentage amounts directly to the LESSORand t LESSEE. LESSEE will provide LESSOR with a tri -party For all Subleases of any nature whatsoever, LF the ES EE� agreement in the form attached hereto as Exhibit "C" to be executed by the LESSEE, its Sublessee, and LESSOR to confirm direct payment obligation from the Sublessee to the LESSOR and to indicate LESSOR has been notified of the sublease; and LESSEE shall have no liability of any nature to LESSOR in the event of failure of payment by Sublessee, It is understood and agreed by the Parties that the foregoing rental percentage amounts shall only apply if LESSEE is able to accommodate all of Sublessm's facilities within the Premises. If LESSEE is unable to accommodate any or part of Sublessee's facilities within the Premises, then LESSOR may enter into an agreement with the Sublessee for a portion of the Property that Sublessee requires to locate its facilities, In this event, LESSEE shall receive 100% of the rental for that portion of the facilities that are located within the limits of the Premises and LESSOR shall receive 100% of the rental, negotiated by LESSOR and Sublessee, for the portion of Sublessee's facilities that are located on the Property outside the Premises. Notwithstanding any other provision of this Agreement, the LESSEE shall not be required to obtain approval from the LESSOR for the Subletting of the Premises or part thereof; however, LESSEE shall provide written notice thereof to LESSOR. LESSEE shall have the sole right to determine whether it will Sublet any portion of the Premises or whether it will sublease to any specific Sublessee, 33. CAPITAL CONTRI-BUTION. Concurrent with the execution of this Agreement by LESSEE, LESSEE shall tender to LESSOR, as a capital contribution, a check in the amount of 34. TAXES. LESSEE shall pay as additional rent any documented increase in real estate taxes levied against the Property which are directly attributable to the improvements constructed by LESSEE within the Premises. LESSOR shall provide to LESSEE a copy of any notice, assessment or billing relating to real estate taxes for which LESSEE is responsible under this Agreement within ten (10) days Of receipt of the sa obligation to make payment of any real estate taxes until LESSEE has received the notice, assessment or billing relating to such Payment as set forth in the precedingsentence. LES shall have the, right, at its sole option and at its sole cost and expense, SEE seek modification of any real estate tax assessment or billing for which to appeal, challenge, or - LESSOR shall reasonably cooperate with partly responsible for payment tinder this Agreement LESSEE is wholly or LESSEE it, filing, PfOsect)fing and perfecting any appeal or Challenge gC to real eStato taXeS f0tT11 in the Precedilig sentellce, 88 Set including but not limited to, execut"29 a17Y consent to appeal of other similar document. LESSEE shall be responsible for the payment of personal Property taxes on LEssBF-,s wireless communications equipment which may agrees to pay the same ,in a timely manner, be located on the Property, and IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective scUls the day and year first above written. WITNESS Name:St Name: Bonnie L. ---.q-Darrenk_*n 0 3626779_v8 LESSOR: Indian River County By Cary .Wheeler, Chairinaij Date approved by BCC: 02/20/07 Attest; 1. . rk of Court By !A Barton,; eputy Clerk �uU Jo ph MBrd, County Adm jjjs—trator EM Arian E. Fell, Assistant �.:'OuntV A LESSEE: Verizon Wireless Personal otririjullications LP )kiVIe d/b/a Verizon ss BY: Name: Hans F. Leutenegger Area Vice President - Network South Area Exhibit "A" (Description Of Property and Premises) DESCRIPTION RECOMXV W o""ClKL RECORM KXW 04J, NOC 7239, fA"AAI R14UR COUA(q; rLooVCK p(ta,,C RfV,?,,'V '11ok POftiQll Of GONct"Ment Lot 2, In Section 25 Townsh* 31 South, lunge 39 East. lying and being 41 Indian River County.FlorfTo, described )5 follows! ,ornmen" of the Southwest corner of sold Government Lot 2; thence run 50uth 59' 47' 30" East for 91.67 toot to the Point Of beginni thence ,,in North 55' 38' 22* East for 90,40 fool; thence run North 3 391 49" "oat for 191,05 feet: thence run North 64' 08' 21" o Eoit for 264.37 feat, the Westerly right of WOY line of State Road No. Alfihaving o 100 fool ride right Of Way; thence run Southcoatorly along said tight of way line, )n the orc of a circvlor curve to the right, concave Southwazlorl, haying i rodius of 5693.88 feet. through o control angle of 03' 36' 09 , for on irc distance of 358.00 fact, to the South line of said Government Lot 2; hence run North 89' 47' 30' West, for 590,19 feok to the Oint of beginning, )ESCRIPTION OF I-USSEe PKEM [hot portion of Goverm"nont Lot 2, in Section 25, Township 31 SqUth, longe 39 Lost, lying and being in Indian River County, Florida. described ]5 follows: ,ornnionce at the Southwest cornor of said Government Lot 2; thence run South 89' 49' +0" EC51 along the South line of said 09YOrnmem Lot 2, 1 distance of 91.87 leek; thence continue South 09, 49' 40" East along .he South fine Of said Government Lot 2, a OAtonce of 412.76 feet, thence North00' 09' W East a distance of 36.26 toot to the POINT Or BEGINNING: thence North 89' 50' 43" West a distance of 25.00 fact; thence North DO* 09' 17' East a distance 100.00 foot; thence South 89' 50' 43' East :) distance of 25.00 (cot; thence South 00' og' 17" West a distance of 100-00 foot to the POINT OF UEGINNING. �Qntoining On area Of 2,500 Square feet, DESCRIPTION OF ACCESS & UTILITY EASEMENT '\ 15,00 foot wide strip 91 land in Government Lot 2, row"VIlip 31 South, Rang. 39 East, In Sec"on 25, Ind River County, Florida. the oidolin4s of which lying 7.50 feet on cocil Ode of the following described conterfins: ^ur"n`s`0c0 01 the Southwest corner of said Government Lot 2; thence run 3owtil 89' 0' 40' East along the South line of Sall Government Lot 2, 3 CITS(unCO of 91.67 fool; thenot continuo South 89' 40' 40" East along the South lirte of gold Government Lol 2, a distance of 412.70 fret; thence North 00' 09' 17" East q distance of 36.26 feet; thence North 89' 50' 43" West o distance of 17,50 1041 to the POINT OF BEGINNING of the herein described ,,onterhna; thence South 00' OW 7' West q dlptqnca of 28,76 feet; thence SOW$ 09' 49' 40' E031, parallel to and 7.50 feat Northerly of. when measured right qn9les 10- sold South fine Of Government Lot 2, a distance of 131.16 lost; thence North 67' 43' 14' Eokt a distance of 54.64 fool to a point on the West right—of—way (r/w) IIAV of Stole Road No. AIA (100' r/w width), said point being the PQ;NT TERMINATION of the heroin daQc6bod centerline, The sidelines of acid 15 foot wide Strip to bel extended or triminod as necessary, to form one contiguous shape, and to Meet the Westerly V�' , kle Of Stole Road No, AIA Qt the polnt of termination, CIT a exhibit "B" (Depiction of Property and Premises) t at. A �{ a# A r it(ij TtrJiX t !1"l i !"5{°[i1 5#� .!Alit v ti7�lF lR " is YIN (3. r-• I tl p 4 tJ y, 1,r i i w` a 9 '1y I � ttt I f ii � I a r it(ij TtrJiX t !1"l i !"5{°[i1 5#� .!Alit v ti7�lF lR " is YIN (3. r-• I tl p 4 tJ y, 1,r I � ttt I ii i e r it(ij TtrJiX t !1"l i !"5{°[i1 5#� .!Alit v ti7�lF lR " is YIN (3. r-• I tl p 4 tJ y, 1,r Exhibit "C" (Form Of Tri -Party Agreement) Lessee's Site JD: TRI -PARTY SUBLEASE AGREEMENT This Tri -Party Sublease Agreement ("Agreement") is made and entered into this 7 day Of ---, 20.__ by and among INDIAN RIVER COUNTY, a political subdivision of the State of n- orida, with a mailing address located at 1840 25th Street, Vero Beach, Florida 32960, hereinafter designated "Owner", and VERIZON WMLESS PERSONAL COMMUNICATIONS LP d/b/a Verizon Wireless, with its principal office located at 180 Washington Valley Road, Bedminster, New Jersey 07921, hereinafter designated "Lessee", and a with its mailing address located at hereinafter referred to as "Sublessee", RECITALS WHERE, AS, Owner is the owner of certain real property situated at (hereinafter the "Property"), WHEREAS, Owner and Lessee entered into that certain Land Lease Agreement dated (hereinafter referred to as the "Prime Lease"), attached hereto as Exhibit I, whereby Lessee ]eased a portion of the Property legally described in the Prime Lease (herein the "Premises") for the purpose of constructing and operating a communications tower and facilities. WHE RE AS, Sublessee desires to sublease from Lessee both ground space and tower space to install, maintain and operate a communications facility, WHEREAS, Section 32 of the Prime Lease requires any sublessee co -locating within the Premises to execute this Agreement. WHEREAS, this Agreement shall constitute Lessee,s written notice to Owner of a subleasc, of the, Prcnrises as required by Section 32 of the Prime Lease, NOW, THEREFORE, for and in consideration of the covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. The foregoing Recitals are true and correct and are incorporated herein reference. -V 2. Pursuant to Section 32 of the Prime Lease, Sublessee acknowledges and agrees that any sublease rent due under that certain dated 20 —, by arid between Lessee and Sublessee, hereinafter referred to as the "Sublease", is to be split equally between Owner and Lessee and that Sublessee is obligated On the first W) day of each month during the term of the Sublease to pay owner for its fifty percent (50%) share of said rent. Upon determination Of the Commencement Date of the Sublease by Lessee and Sublessee, Sublessee shall promptly thereafter provide written confirmation of said Commencement Date to Owner, in the event Sublessee fails to timely make any payment to Owner due under this Agreement, and such failure continues for more than fifteen (15) days after receipt of written notice from Owner to Sublessee, then Sublessee agrees that Owner shall be entitled to exercise against Sublessee all remedies available to a landlord under a lease in the State of Florida, including the right to terminate the Sublease. The fore shall not in any way limit Lzssce's rights and remedies against Sublessee for Sublessee's fgoillung to Pei -form tinder the Sublease.re 3. Sublessec's rights under the Sublease and its use of the Premises are subject in all respects to the terms and conditions of the Prime Lease, including without limitation, the interference provisions set forth in Section 11 of the Prime Lease; provided, however, Sublessee shall not be obligated for monetary obligations payable by Lessee to Owner under the Prime Lease except as Contemplated in the Sublease and this Agreement. 4. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courier, provided the courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business clay following the courier's receipt from the sender, addressed as follows (or any Other address that the party to be notified may have designated to the other by notice delivered in accordance with this paragraph): Owner: Indian River County Director of Utility Services County Administration Building 1.840 25h Street Vero Beach, Florida 32960 Attention: Director of General Services Lessee: Vcliz011 Wireless Personal Communications LP d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate Sublessee: Notice shall be effective upon mailing or delivering the same to a commercial courier, as permitted above, 5. In the event the Prime Lease expires or is otherwise terminated, Owner and Sublessee may agree on a new lease agreement for Sublessee's use of space at the Property, IN WITNESS HEREOF, OF, the Parties hereto have executed this Agreement as of the date first written above. WITNESSES: By: Naive: ---- By:_ Name: LESSEE; VE RIZON WIRELESS PERSONAL COMMUNICATIONS LP d/b/a Verizon Wireless By: Name: Hans F. Leutenegger Title: Area Vice President, Network, South Area Date: OWNER: INDIAN RIVER COUNTY By:_ Name: Title: Date approved by BCC: Attest: -, Clerk of Coua By:_ Title: Deputy Clerk Approved: Name: Title: County Administrator Approved as to form and legal sufficiency: Name: Title- Assistant County Attorney SUBLESSEE: WITNESSES: By: Name: By: Name: Title: By:_ Date: Naine. EXHMIT 1 Fnm- e Lase See Attached