HomeMy WebLinkAbout1999-289•4
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TOWER AND GROUND SPACE LEASE
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
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Indian River County Board of County Commissioners, hereinafter called "Lessor", and
Florida Power and Light Company-, hereinafter called "Lessee", agree as follows:
1. In consideration of the mutual covenants stated herein, the Lessor does hereby grant
permission to the Lessee to install and operate radio communication equipment on Lessor's property
at 5350 77s' Street Hobart Park Wabasso. Florida
2. The antenna shall be installed upon the tower located at 27 degrees 44 minutes 10 seconds
North and Longitude 80 degrees 27 minutes 26 seconds West, at a height of 315 Feet above ground
level. Flexible coaxial transmission lines shall be installed between the antenna and the radio
equipment. Such coaxial lines shall be firmly anchored to the tower. Radio communications
equipment consisting of transmitter, receiver and accessories, including a back-up generator, shall
be installed in the tower equipment building located at the base of the tower. Lessee shall have the
right to occupy not more than 700 square feet of ground space for installation of such equipment.
Committed tower utilization space, including protective clearance above and below the antenna(s),
shall not exceed four feet.
3. The term of the lease and the Lessee's obligation to pay rent shall commence as noted in
Section #9. The term of this lease shall be five (5) year(s) commencing on the date of this lease and
shall automatically be extended for four (4) additional five year (5) extension terms thereafter unless
within 90 days prior to the expiration of the term thereof, or any renewal under this provision, Lessee
shall notify in writing that it does not desire to have the lease renewed. The Lessor reserves the right
to terminate this lease upon 180 days prior written notice by Lessor to Lessee that the property is
needed for an overriding public purpose as determined in the sole discretion of Lessor, provided,
however, that the lease of the property to a third party for commercial purposes shall not be
considered an overriding public purpose.
4. Lessee Defaults:
A. The occurrence of any one or more of the following events shall constitute an
"Event of Default" hereunder by Lessee:
1. The failure by Lessee to make any payment of rent or any other payment
required to be made by Lessee hereunder, as and when due, where such
failure shall continue for a period of twenty (20) days after written notice
thereof is received by Lessee from Lessor.
2. The failure by Lessee to observe or perform any of the covenants of
provisions of this Lease to be observed or performed by Lessee, other than as
specified in Paragraph 4.A.(i), where such failure shall continue for a period
of thirty (30) days after written notice thereof is received by Lessee from
Lessor; provided, however, that it shall not be deemed an Event of Default
by Lessee if Lessee shall commence to cure such failure within said thirty
(30) day period and thereafter diligently prosecutes such cure to completion
P - within ninety (90) days, unless written extension is granted by Lssar.
B. The Lessee abandons the premises or uses the premises for any unauthorized
purpose.
C. If there occurs an Event of Defuult by Lessee, in addition to any other remedies
available to Lessor at law or in equity, Lessor shall have the option to terminate this
Lease and all rights of Lessee hereunder.
5. Lessor shall have the right to terminate this lease upon 60 days written notice if:
A. Lessee defaults hereunder as described under Paragraph 4;
B. The tower is wholly or partially destroyed from any cause and cannot be reasonably
repai red.
6. The Lessee may terminate this lease upon 60 days written notice to Lessor if any of the
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following occurs.
A. Lessee determines, in its sole discretion, that it will be unable to obtain all rcc)m zuy
Governmental Approvals for L.essee's intended use of and improvements to the
Property desired by Lessee; or
S. Lessee's application for any Governmental Approvtds necessary for Lessee's use of
the Property and improvements desired by Lessee is denied; or
C. Any Governmental Approvals necessary for Lessee's use of the Property an/or
improvements to the Property, whether now or hereafter desired by Lessee, are
canceled, expired, lapsed or are otherwise withdrawn, terminated or denied so that
Lessee, in its reasonable judgment, determines that it will no longer be able to usele
Property for Lessee's intended use; or
D. The Federal Communications Commission allocates the frequencies it which Lessee
may operate its antennas and equipment and may from time to time change such
frequencies. Any changes of this nature that, in Lessee's reasonable judgment,
renders its operation ofa wireless communications facility at the Property obsolete;
or
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E. If Lessee determines that the Property has become unsuitable for Lessee's operations
due to changes in system or network design or in the types of equipment used in such
operations of Lessee's operations at the Property become unprofitable; or
F. If Lessee constructs its own tower facilities; or
G. If after an agreed upon engineering evaluation, Lessor's tower is found to be
structurally and operationally insufficient to meet the requirements of Lessee or if
Lessor is unable to obtain all necessary permits or approvals for such tower.
H. Any termination notice rendered by Lessee pursuant to this Paragraph shall cause this
Lease to expire; upon the 60th day after such notice or later (late if specified in such
notice and the parties shall make an appropriate adjustment, as of such termination
date, with respect to payments due to the other under this Lease.
7. This lease shall be binding upon the respective parties, their assigns and successors. Except
to Lessee's parent or affiliate company, Lessee may assign its rights and obligations under this lease
only upon prior written approval of the Lessor, and such approval shall not be unreasonably
withheld.
8. Lessee takes the facilities as is and Lessor does not warrant that the facility is sufficient for
the use intended by Lessee. Any modifications necessary to make the facility usable by the Lessee
may only be made after approval by the Lessor, such approval not to be unreasonably withheld, and
shall be made at the sole expense of the Lessee,
9. The patties acknowledge and agree that as consideration for Lessor granting to Lessee the
tights set forth in this Lease, the parties agree as follows:
A. As a one time initial rental fee and in exchange for free use of the Hobart Tower for
the Lessee's 900 MHz Communications System equipment and antenna space for a
period of ten years, the Lessee, at its expense, will place a 12'x 20' concrete shelter
on an elevated foundation capable of withstanding the high wind and flooding that
could result from a Category 4 hurricane and make available the necessary space to
relocate the Indian River County 15 channel EDACS hot back up 800 Matz
Communications System to the equipment building, and in addition will provide the
services or equipment as follows:
1. The Lessee will, at its expense, relocate the County EDACS system, and
associated equipment, to the FP&L equipment building ensuring it is
operational after the relocation.
2. The Lessee will provide a generator with automatic power, start, and transfer
switch to preclude extended power outages for use by the lessor at no charge
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to the Lessor.
3. The lessee will provide a DC Battery System for 8 hours of power carry over
at no expense to the Lessor.
4. The Lessee will provide maintenance for the shelter and generator during the
term of the Lease at no expense to the Lessor.
The Lessee will cause a tower analysis and documentation to be completed
by an engineering firm and provide a copy to the Lessor at no expense to the
Lessor
B. After the ten year period, the Lessee will begin paying an annual tower rental fee that
is in effect and applicable to all other lessees on the tower at that time as approved
by the Board.
C. In addition, Lessee shall pay Lessor a one-time payment of Five Thousand Dollars
($5,000.00).
D. Security Deposit By Lessee: Lessee shall deposit with Lessor a refundable security
deposit of Ten Thousand Dollars ($10,000.00) that maybe used by Lessor in the
event that Lessee breaches this Lease and such breach causes Lessor to incur
damages to property or expenses for removal of any of Lessee's property from the
Leased Property. Lessor shall be required to maintain the deposit in an interest
bearing account maintained in a financial institution insured by the Federal Deposit
Insurance Corporation and separate from Lessor's other funds. Upon the termination
or expiration of the Lease, till interest that may accrue on the deposit shall be added
to the deposit amount and returned to Lessee.
10. Lessee shall separately meter all utilities consumed by Lessee. Lessor agrees to cooperate
with Lessee in obtaining and/or maintaining, at no expense to Lessor, such approval, utility services
and easements required for Lessee's proposed use of the Leased Property,
11. During the term of this lease, Lessor agrees that Lessec shall have free access to the tower
and the premises on which the tower is located 24 hours per day, for the purpose of installing,
maintaining, repairing and removing its equipment.
12, The installation, maintenance, repair and removal of Lessee's equipment shall not damage
the premises or the tower structure or interfere with the maintenance of the Lessor's property.
13, Lessee shall comply with all applicable laws and regulations, including rules and regulations
of the Federal Communications Commission.
14. A. Lessor warrants and agrees that lessee, upon paying the rent and performing the
covenants herein provided, shall peaceably and quietly have and enjoy the Property.
B. Lessor hereby grants to Lessee, as a primary inducement to Lessee's entering into this
Lease, the first priority tight to install its antennas and operate its communications
equipment at the Tower. From time to time Lessor may grant to other entities the
right to operate their communications equipment at the Tower and/or the right to
install antennas in connection with the operation of such communications equipment,
provided, however, that Lessor shall not allow the operation of such communications
equipment and antennas brother tenants to interfere with the operation of Lessee's
antennas and equipment as it exists at the time of such other tenant's installation of
as it may be modified at any time during the term of this Lease, as the same may be
extended. if any such interference occurs. Lessor agrees to eliminate or cause the
elimination of such interference with Lessee's operations within it reasonable time
after receipt of Lessee's notice of such interference and, if necessary, to cause the
interfering party to cease its operations. If such interference continues for more than
thirty (30) days after Lessee's notice to Lessor with respect to such interference,
Lessor shall require the party causing the interference to cease using the equipment
which is causing the interference.
15. Lessor agrees:
A. To maintain the radio lower in good working condition at all times in order that the
Lessee may have the use of said tower as contemplated herein, and
B. To maintain the radio lower strictly in accordance with the requirements of the
Federal Communications Commission and all required Governmental rules and
regulations.
16. The Lessee does agree to indemnify and save Lessor harmless from any and all claims,
liability, losses and causes of action which may arise out of Lessee's interest in the leased prermses
under the lease agreement or the Lessee's activity on the demised premises, The Lessee shall pity
all claims and losses of any nature whatsoever in connection therewith, arid shall defend all suits,
at the Lessor's requires, in the name of the Lessor when applicable, and pay all costs and judgments
which issue therefrom. The foregoing indemnification shall not apply to claims, liability, losses and
causes of action which arise solely or ill part from tile negligent or intentional acts of Lessor.
17. The Lessee shall maintain public liability insurance, naming Indian River County its all
additional insured, with policy limits of no less than $100,000.00 per occurrence and $300,000.00
aggregate at all times during the term of this lease. The Lessee shall provide proof ofinsure nce to
the Lessor at the time this lease is executed, and with each annual rental payment. Notwithstanding
the foregoing, Lessee may self -insure its obligations under this lease,
18. Lessee's equipment shall remain personal to and the property of Lessee. At the termination
of this lease, Lessee shall promptly remove all its equipment and shall, at Lessee's expense, restore
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Lessor's properties to the same condition as they were prior to Lessee's occupancy, normal wear and
tear excepted.
19. 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, Should Lessor or Lessee have a change
of address, the other party shall immediately be notified as provided in this Paragraph of such
change. Unless Lessor otherwise specifies in writing, rent checks from Lessee shall be sent to the
person listed to whom notices were sent.
Lessee; Florida Power & Light Company
9250 West Flagler Street
Miami, Florida 33174
Attn: Everett C. Stonebraker
Operations Manager
Phone: (305)552-3019
Lessor: Indian River County Board of County Commissioners
1840 25th Street
Vero Beach, FL 32960
Attention: Douglas M. Wright
20. Hazardous Substances: Lessor represents and warrants to Lessee that hazardous substances
have not been generated, stored or disposed of on or about the Property, nor have the same been
transported to or over the Property. "Hazardous substance" shall be interpreted broadly to mean any
substance or material defined or designated as hazardous or toxic waste, hazardous Or toxic material,
hazardous or toxic or radioactive substance or other similar term by any federal, state of local
environmental law, regulation or rule presently in effect or promulgated in the future, as such laws,
regulations or rules may be amended from time to time; and it shall be interpitted to include but not
be limited to any substance which, after release into the environment, will and may reasonably be
anticipated to cause sickness, death, or disease,
21. Sale or Transfer by Lessor: Should Lessor, at any time during the term of this Lease, sell,
lease, transfer or otherwise convey all or any part of Lessor's Property to any transferee other than
Lessee, then such transfer shall be under and subject to this lase and all of Lessee's lights
hereunder.
22. Right to enter into agreement: Lessor warrants and agrees that Lessor is seized of good and
sufficient title and interest in the Property and has full authority to enter into and execute this Lease
and that there are no undisclosed liens, judgments or impediments of title on Lessor's Property 111,11
would affect this Lease.
23, Condemnation: In the event the whole ofliessor's Property, including Without limitation
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the Property and Tower, shall betaken or condemned, citherteniporirilyoi-perniinently, for public
purposes, or sold to a condemning authority under threat of condemnation to prevent taking, then
this Lease shall forthwith automatically cease and terminate. Lessor shall receive the entire
condemnation award for land, Tower and such other improvements as are paid for by Lessor, and
Lessee hereby expressly assigns to Lessor any and all right, title and interest of Lessee now or
hereafter arising in and to any such award. Lessee shall have the right to recover from such
authority, but not from Lessor, any compensation as may be awarded to Lessee on account of the
leasehold interest, moving and relocation expenses, and depreciation to and removal of the personal
property and fixtures of Lessee.
24. This lease constitutes the entire agreement of the parties hereto and shall supersede all prior
offers, negotiations and agreements. No revision of this lease shall be valid unless executed in
writing by both parties.
LESSOR: Ind'jan,River County Board of County Commissioners
1840.2 -5th Street
'j
Aero Beach,,, 32960
By:
Tij, Chairman—.Indian Rive - County
Board,-o,f County'Commissioners
ACKNOWLEDGMENT
STATE OF: _—ELaR_LaA--
COUNTY OF: JhkjAAJUjER—
The foregoing instrument was acknowledged before me this 16tJ'dayofNovember 1999, by_
Kenneth R. Macht as Chairman , of Indian River County Board of County
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Commissioners who is personally known to me or -has ppotlucGd,7-7 as-iJon ti t
(AFFIX NOTARIAL SEAL)
(OFFICIAL NOTARY SIGNAT RE)
Notary Public - State of Florida
Kimberly E. Massung --- i
(Printed. Typed or Stamped Name ot'Notary)
Commission Number: CC855436
4W! , r .1,
fAy CmAMISSION 1 C2005C655456 WIRES
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