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HomeMy WebLinkAbout2014-183Cell Site Name: TC VERO Business Unit No.: 840753 Fixed Asset No.: 10023046 Market: South Florida Address: 3925 65th Street, Vero Beach, FL g.R. -I aolei-133 LEASE EXTENSION AND FIRST AMENDMENT This Agreement for Lease Extension and First Amendment ("First Amendment") entered into on the 18 day of November , 2014, by Indian River County, a political subdivision of the State of Florida, 1801 27th Street, Vero Beach, FL 32960 ("Lessor"), and Florida 2B MPL Tower Holdings LLC, a Delaware limited liability company, by and through its attorney-in-fact CCATT LLC, a Delaware limited liability company, having a mailing address of 2000 Corporate Drive, Canonsburg, Pennsylvania 15317 (hereinafter referred to as "Tenant"). WITNESSETH: WHEREAS, Lessor and Bellsouth Mobility Inc. ("Original Tenant") entered into that certain Lease Agreement dated August 14, 1990 (as amended and assigned, the "Agreement"), whereby Lessor leased to Original Tenant a portion of that property (said leased portion being the "Premises") located at 3925 65th Street, in the City of Vero Beach, County of Indian River, State of Florida, commonly referred to as the Winter Beach Tower, which property underlying the Premises (the "Property") is described in Book 896, Page 995 in the Indian River County Register of Deeds Office ("Registry"), together with those certain access, utility and/or maintenance easements and/or rights of way granted in the Agreement; and WHEREAS, as Bellsouth was the original Tenant on the 1990 lease, but over the ensuing 23 years, the cellular industry has seen frequent mergers and acquisitions which have resulted in Florida 2B MPL Tower Holdings LLC as the current Tenant of this Agreement; and WHEREAS, Florida 2B MPL Tower Holdings LLC is now the lawful and responsible Tenant under the terms of the Agreement and this First Amendment; and WHEREAS, the term of the Agreement between Tenant and Lessor ("the Parties") will expire in January 20, 2016; and WHEREAS, the Parties desire to extend the Agreement, and amend the Agreement to provide for a 4% annual increase in rental payments made by Tenant; and WHEREAS, Lessor and Tenant desire to amend the Agreement to modify the notice section thereof. NOW, THEREFORE, in consideration of the mutual terms and promises stated herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Lessor and Tenant agree to amend and extend the Agreement as follows: 1. The foregoing recitals are true and correct and incorporated as if fully restated herein. 2. Paragraph four (4) of the Agreement is hereby amended to provide for two (2) additional five (5) year extension terms commencing on January 21, 2016 (each five year extension is hereinafter referred to as a "Renewal Term"). The initial term of the Agreement and all Renewal Ten -ns are collectively referred to as the 1 "Lease Tenn". The Lease Tenn shall automatically be extended for each successive Renewal Term unless Lessee notifies Lessor of its intention not to renew at least ninety (90) days prior to the expiration of the then current five year term. Lessor agrees and acknowledges that except that as such permitted use or other rights may be amended herein, Tenant may continue to use and exercise its rights under the Agreement as permitted prior to the commencement of the two additional extension terms. 3. Paragraph five (5) of the Agreement is hereby amended to provide for a new rental rate payable annually in advance in accordance with the following schedule: Start Date — End Date Annual Rental January 21, 2016 — January 20, 2017 $18,702.10 January 21, 2017 — January 20, 2018 $19,450.18 January 21, 2018 — January 20, 2019 $20,228.19 January 21, 2019 — January 20, 2020 $21,037.32 January 21, 2020 — January 20, 2021 $21,878.81 January 21, 2021 — January 20, 2022 $22,753.96 January 21, 2022 — January 20, 2023 $23,664.12 January 21, 2023 — January 20, 2024 $24,610.69 January 21, 2024 — January 20, 2025 $25,595.12 January 21, 2025 — January 20, 2026 $26,618.92 For the avoidance of doubt, Tenant may offset future rent by any amount paid to Lessor in excess of rent due and payable under the Agreement as amended hereby. 4. Paragraph 18 of the Agreement is hereby amended to reflect the changes in addresses of the Parties: Tenant: Florida 2B MPL Tower Holdings LLC ATTN Network Legal 208 S. Akard Street Dallas, Texas, 75202-4206 With a copy to: CCATT LLC Attn: Legal Dept. 2000 Corporate Drive Canonsburg, Pennsylvania 15317 Lessor: Board of County Commissioners Indian River County Attention: Telecommunications Division 1801 27th Street Vero Beach, FL 32960 5. Expansion of the Leased Premises. Lessor grants, to the extent practicable and on a space available basis, the Tenant the right to enlarge the Leased Premises or the Lessor shall make space available on the property for Tenant so that Tenant or its authorized sublessees may implement any necessary 2 modifications, supplements, replacements, refurbishments, or expansions to the Tenant's communications fixtures and related equipment, cables, accessories and improvements, tower, associated antennas, equipment shelters or cabinets, or any equipment related thereto (collectively, the "Communications Facility"), or for any other reasons, as determined by Tenant in its sole discretion. Should Tenant exercise the right to expand the Leased Premises, Tenant will pay and Lessor will accept as additional rental under the Agreement an amount equal to the then current rent calculated on a per square foot basis as multiplied by each additional square foot added to the Leased Premises. Upon notice to Lessor, a description and/or depiction of the modified Leased Premises ground will become part of the Agreement without any additional action on the part of Tenant and Lessor; however, at the request of Tenant, the parties will execute a Memorandum of Lease in recordable form memorializing the modification of the ground space of Lessor's Property, which either party may record at its option. 6. 24/7 Access. Lessor hereby grants to Tenant, its authorized sublessees, and to any public or private utility serving Tenant's Communications Facility or related equipment, access to the Leased Premises and to and over the Property twenty-four hours per day, seven days per week (24/7), including but not limited to, access from an accessible, open and maintained public road to the Premises, for the installation, maintenance, repair, modification, alteration, or refurbishment of the Communications Facility or any equipment related to such Communications Facility as such access is deemed necessary by Tenant, in its sole discretion, without the requirement of notice by Tenant to Lessor. In the event that any public or private utility serving Tenant's Communications Facility is unable to use the access provided to Tenant, the Lessor hereby agrees to grant additional access to Tenant or to such public or private utility, for the benefit of Tenant, at no cost to Tenant and pursuant to the same terms and conditions as noted above. The terms and conditions regarding access in the Agreement remain in full force and effect, except as modified by this paragraph. 7. Sale of Property. (a) Lessor shall not be prohibited from the selling, leasing or use of any of the Property or the Surrounding Property except as provided below. (b) If Lessor, at any time during the Term of the Agreement, decides to rezone or sell, subdivide or otherwise transfer all or any part of the Leased Premises, or all or any part of the Property or Surrounding Property, to a purchaser other than Tenant, Lessor shall promptly notify Tenant in writing, and such rezoning, sale, subdivision or transfer shall be subject to the Agreement and Tenant's rights hereunder. In the event of a change in ownership, transfer or sale of the Property, within ten (10) days of such transfer, Lessor or its successor shall send the documents listed below in this subsection (b) to Tenant. Until Tenant receives all such documents, Tenant shall not be responsible for any failure to make payments under the Agreement and reserves the right to hold payments due under the Agreement. i. Old deed to Property ii. New deed to Property iii. Bill of Sale or Transfer iv. Copy of current Tax Bill v. New IRS Form W-9 vi. Completed and Signed AT&T Payment Direction Form vii. Full contact information for new Lessor including phone number(s) (c) Lessor agrees not to sell, lease or use any areas of the Property or Surrounding Property for the installation, operation or maintenance of other wireless communications facilities if such installation, operation or maintenance would interfere with Tenant's Permitted Use or communications 3 equipment as determined by radio propagation tests performed by Tenant in its sole discretion. Lessor or Lessor's prospective purchaser shall reimburse Tenant for any costs and expenses of such testing. If the radio frequency propagation tests demonstrate levels of interference unacceptable to Tenant, Lessor shall be prohibited from selling, leasing or using any areas of the Property or the Surrounding Property for purposes of any installation, operation or maintenance of any other wireless communications facility or equipment. (d) The provisions of this Section shall in no way limit or impair the obligations of Lessor under the Agreement, including interference and access obligations. 8. Rental Stream Offer. If at any time after the date of this First Amendment, Lessor receives a bona fide written offer from a third party seeking an assignment or transfer of the rental payments associated with the Agreement ("Rental Stream Offer"), Lessor shall immediately furnish Tenant with a copy of the Rental Stream Offer. Tenant shall have the right within ninety (90) days after it receives such copy to match the Rental Stream Offer and agree in writing to match the terms of the Rental Stream Offer. Such writing shall be in the form of a contract substantially similar to the Rental Stream Offer. If Tenant chooses not to exercise this right or fails to provide written notice to Lessor within the ninety (90) day period, Lessor may assign the right to receive rental payments pursuant to the Rental Stream Offer, subject to the terms of the Agreement. If Lessor attempts to assign or transfer rental payments without complying with this Section, the assignment or transfer shall be void. Tenant shall not be responsible for any failure to make payments under the Agreement and reserves the right to hold payments due under the Agreement until Lessor complies with this Section. 9. Memorandum of Lease. Either party will, at any time upon fifteen (15) days prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum of Lease substantially in the form of the Attachment 1. Either party may record this memorandum at any time, in its absolute discretion. 10. Except as amended herein, the terms and conditions of the Agreement shall remain in full force and effect. To the extent of any conflict between the terms of this First Amendment and the ten -ns of the Agreement, the terms of this First Amendment shall control. 4 IN WITNESS WHEREOF, this Lease Extension and First Amendment is executed by the authorized representatives of the parties, as of the day and year first above written. FLORIDA 2B MPL TOWER HOLDINGS LLC A DELAWARE LIMITED LIABILITY CO. BY: CCATT LLC, A DELAWARE LIMITED LIABILITY COMPANY ITS: ATTORNEY IN FACT BY: (printed na (title) He►Pn Smith Real Estate Transaction Manager Ved as William K. 1 eBraal Deputy County Attorney o. form fficiency 5 BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA Wesley S. Davis, Chairman Board of County Commissioners Approved by the BCC: 11-18-14 ATTEST: Jeffrey R. Smith, Clerk of Court And Comptroller BY: t Deputy Clerk of Court r lam seph . Baird, County Administrator Prepared by: Black Dot Wireless 27271 Las Ramblas, Suite 300 Mission Viejo, CA 92691 Return to: CCATT LLC 2000 Corporate Drive Canonsburg, Pennsylvania 15317 ATTACHMENT 1 LEASE EXTENSI This Memorandum of Lase Exten , 2014, by aid betw mailing address at 1801 27th St Ver Tower Holdings LLC, Delaware li limited liability compa haying a m (hereinafter referred to as ant "). WHEREAS, Less August property (s Indian River, (the "Property") is together with those ce and RST AMENDMENT irst Amendment ("Memorandum") is entered into on this day of an Ri r ounty, a political subdivision of the State of Florida, having a Beach, FL 2960 (hereinafter referred to as "Lessor") and Florida 2B MPL mpany, by and through its attorney-in-fact CCATT LLC, a Delaware ing adress of 2000 Corporate Drive, Canonsburg, Pennsylvania 15317 ellsou �. M•.•ility Inc. ("Original Tenant") entered into that certain Lease Agreement dated and assign -d, the "Agreement"), whereby Lessor leased to Original Tenant a portion of that portio . eing e "Premises") located at 3925 65th Street, in the City of Vero Beach, County of Florida, co •nly referred to as the Winter Beach Tower, which property underlying the Premises d in Book 896, Page 995 in the Indian River County Register of Deeds Office ("Registry"), s, utility and/or maintenance easements and/or rights of way granted in the Agreement ; WHEREAS, Florida 2B MPL Tower Holdings LLC is now the lawful and responsible Tenant under the terms of the Agreement and the First Amendment; and WHEREAS, the term of the Agreement between Tenant and Lessor ("the Parties") will expire in January 20, 2016, and the Parties entered into that certain Lease Extension and First Amendment of approximately even date herewith ("First Amendment"), of which this is a memorandum, to extend the Agreement, and to make certain other changes, as set forth below. 1. The Agreement commenced and has been in effect since January 21, 1991 and the parties agree to continue the Agreement with two (2) additional five (5) year extension terms commencing on January 21, 2016. 2. The portion of the land being leased to Tenant (the "Leased Premises") is described in Exhibit 1 annexed hereto. 6 3. If Lessor, at any time during the Term of the Agreement, decides to rezone or sell, subdivide or otherwise transfer all or any part of the Premises, or all or any part of the Property or Surrounding Property, to a purchaser other than Tenant, Lessor shall promptly notify Tenant in writing, and such rezoning, sale, subdivision or transfer shall be subject to the Agreement and Tenant's rights hereunder. 4. Lessor agrees not to sell, lease or use any areas of the Property or Surrounding Property for the installation, operation or maintenance of other wireless communications facilities if such installation, operation or maintenance would interfere with Tenant's Permitted Use or communications equipment as determined by radio propagation tests performed by Tenant in its sole discretion. Lessor or Lessor's prospective purchaser shall reimburse Tenant for any costs and expenses of such testing. If the radio frequency propagation tests demonstrate levels of interference unacceptable to Tenant, Lessor shall be prohibited from selling, leasing or using any areas of the Property or the Surrounding Property for purposes of any installation, operation or maintenance of any other wireless communications facility or equipment. 5. If at any time after the date of the First Amendment, Lessor receives a bona party seeking an assignment or transfer of the Rent payments associated Offer"), Lessor shall immediately furnish Tenant with a copy o the right within ninety (90) days after it receives such copy t1 m writing to match the te�ins of the Rental Stream Offer. Suc' substantially similar to the Rental Stream Offer. If Tenant choose written notice to Lessor within the ninety (90) day period, Less payments pursuant to the Rental Stream Offer, subject to the=te assign or transfer Rent payments without complying with t void. Tenant shall not be responsible for any failure to make pay right to hold payments due under the Agreement until Lesst en offer from a third t ("Rental Stream ant shall have and agree in of a contract t or fails to provide ht to receive Rent If Lessor attempts to ent or transfer shall be greement and reserves the Section. 6. This Memorandum contains only selected provisio full text of the Agreement and the First Amen incorporated herein by this reference. Except\ as o Memorandum, the terms and conditio f the..greemen may be executed in any number '•f unterpart ch of together shall constitute one and the e inst ent.\A a' have the same meanings as defined in the Amendment, and reference is made to the fi terms and conditions, which are she provi s ed in the First Amendment and this emain in full force and effect. This instrument shall be deemed an original and which alized terms used but not defined herein shall first mendment or the Agreement, as applicable. 7 IN WITNESS WHEREOF, the parties have executed this Amended Memorandum as of the day and year first above written. FLORIDA 2B MPL TOWER HOLDINGS LLC A DELAWARE LIMITED LIABILITY CO. BY: CCATT LLC, A DELAWARE LIMITED LIABILITY COMPANY ITS: ATTORNEY IN FACT BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA BY: BY: (printed name) Peter D. O` (title) Board of Co WITNESS: WITNESS: Clerk of Court leputy Clerk of Court . i Jostph ` aird, County Administrator Approved as to form and legal sufficiency William K. DeBraal Deputy County Attorney NN 8 STATE OF ) COUNTY OF ) LESSOR ACKNOWLEDGEMENT SS. I certify that I know or have satisfactory evidence that appeared before me, and said person acknowledged that said person signed this instrum was authorized to execute the instrument and acknowledged it as the mentioned in the instrument. DATED: Notary Seal NNN:\\ is the person who stated that said person of , to be the free and volunta cof ; «, and purposes (Signature of No (Legibly Prins Notary Publ pointmen Stam f Notary) to of for the ` pires: 9 STATE OF TENANT ACKNOWLEDGEMENT COUNTY OF I certify that the following person(s) personally appeared be jr that he/she voluntarily signed the foregoing Memorandum of FI purpose stated therein and in the capacity indicated: Florida 2B liability company, by its Attorney in Fact, CCATT LEC, , its Date: By: [SEAL OR STAMP] knowledging to me ase Agreement for the LC, a Delaware limited limd liability company, by Print Name: Notar Public Corn`ssion Ex 10 Exhibit 1 to Memorandum of Lease Leased Premises The Leased Premises is located on a portion of the Property described and/or depicted as follows: The East one-half of the Northwest onc-quarter of the Southwest one- quarter of Section 10, Township 32 South, Range 39 East, Indian River County, Florida. LEGAL DESCRPTION LEASE PARCEL A parcel of land being a portion of the East one-half of the Northwest ore -quarter of the Southwest one-quarter of Section 10, Township 32 South, Range 39 East, Indian River County, Florida, being more particularly described as follows: Commencing at the Northeast corner of the Northwest one-quarter of the :southwest one-quarter of said Section 10, proceed S 00^26'30" W along the East line of the Northwest one-quarter of the Southwest one-quarter of said Section 10 a distance of 1,020.53 feet: thence N 8933'30" W a distance of 274.35 feet to the Point of Beginning: thence S 00°26'30" W a distance of 50.00 feet; thence N 89°04'59' W a distance of 58.00 feet; thence N 00°26'30" E a dis- tance of 50.00 feet; thence S 89°04'59" E a distance of 58.00 feet to the Point of Beginning. Containing 2,899.9 square feet, more or less. 11 LEGAL DESCRIPTION ACCESS/ANCHOR EASEMENT A parcel of land being a portion of the East one-half of the Northwest one-quarter of the Southwest one-quarter of Section 10, Township 32 South, Range 39 East. Indian River County, Florida. being more particu- larly described as follows; Commencing at the Northeast corner of the Northwest 1/4 of the Southwest 1/4 of said Section 10, proceed N 89°04'59' W along the North line of the Southwest 1/4 of Section 10 a distance of 274.36 feet; thence S 00°26'30' W a distance of 40.00 feet to a point on the South right-of-way line of 65th Street (AKA South Winter Beach Road), said point also being the Point of .Beginning; thence S 00°26'30" W a distance of 667.81 feet; thence S 89°04'59" E a distance of 274.36 feet; thence S 00°26'30" W a distance -of 633.48 feet; thence N 89°39'22" W a distance of 660.29 feet; thence • N 00°26'40" E a distance of 640.09 feet; thence S 89°04'59" E a distance of 355.92 feet; thence N 00°26'30" E a distance of 667.81 feet to a point on said south right-of-way line of 65th Street; thence S 89°04'59" E_along said south right-of-way line of 65th Street a distance of 30.00 feet tp the Point of Beginning. Containing 440,485.5 square feet or 10.11 acres, more or less. 12