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HomeMy WebLinkAbout1995-3350 M TME RI JEFFREY CLERK IF LEASE AGREEMENT This Agreement made this A- day of �l•A'/� between the COUNTY OF INDIAN RIVER, a political subdivision State of Florida, whose address is 1840 25th Street, Vero Florida, 32960, hereinafter designated COUNTY, and TALCOM, Florida Partnership with offices at 1920 Corporate Drive, Beach, FL 33426, hereinafter designated as TENANT. RECITALS: 19 of the Beach, INC., a Boynton COUNTY is the owner of certain real property located in Indian River County, State of Florida, and TENANT desires to lease a portion of said real property, together with a fifteen foot (15') wide right of way for access thereto (said leased parcel and right of way hereinafter called "Property"). The Property is more specifically described on Exhibit "A" attached hereto and made a part hereof. NOW, THEREFORE, in consideration of the mutual covenant§ §et forth in this Agreement, COUNTY hereby grants to TENANT the right to lease said Property, including a right of way for access thereto, for the term and in accordance with the covenants and conditions set forth herein. 1. Leased Premises: COUNTY hereby leases to TENANT and TENANT leases from COUNTY the Property, together with the nonexclusive 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, cables, conduits and pipes over, under or along a fifteen foot (150) wide right of way extending from the nearest public right of way to the Property. �9� W33 S 2. Term: This Agreement shall be for an initial term of five (5) years commencing upon COUNTY's receipt of written notification by TENANT advising COUNTY that TENANT has received all approvals, permits, consents or orders necessary to use the Property by TENANT as contemplated herein. TENANT shall have the right to extend this Lease for four additional five (5) year terms and such extension(s) shall automatically occur unless TENANT provides COUNTY with written notice of its intent not to extend this Agreement, no later than six (6) months prior to the termination of the then current term. If, at the end of the fourth five (5) year extension term, this Agreement has not been terminated by either party pursuant to the terms of this Agreement, this Agreement shall continue in force upon the same covenants, tormo and CQndit1Qna set forth in this Agreement, for an additional term of on® (1) year and for annual terms thereafter until terminated by either party upon giving the other party written notice of its intent to terminate at least six months prior to the end of such term. COt1PITY ATTORNEY'S OFFICE IP'�14N FIVER COUNTY 1140 26fh Strad Vero Beach, Florida 32960 M tO N W Cn Cl% O W 13.. %+ . O co toG a 6 3. Consideration: The parties acknowledge and agree that as consideration for COUNTY granting to TENANT the rights set forth in this Agreement, the parties agree as follows: a. As a one-time lump sum rental fee, TENANT, at its expense, shall arrange for the construction of a 214' free standing telecommunication tower to be located on or about the Property ("Tower") and to arrange for the construction of a free standing 1,000 square foot equipment shelter, in which each party may house its telecommunication equipment ("Equipment Building"). b. As consideration for TENANT making such lump sum rental fee payment and for arranging,for the construction of the Tower and Equipment Building, and in addition to the rights granted herein to TENANT, COUNTY shall pay to TENANT as a contribution to the construction costs of the Tower and Equipment Building, a lump sum payment in the amount of $30,000 payable within thirty (30) days of final approval and permits for construction. a. TENANT shall have the right to use the Property for the purpose of constructing, operating, maintaining and occupying the Tower and the Equipment Building as deemed necessary by TENANT in the operation and maintenance of its business, which shall include, but not be limited to, the transmission and reception of radio communication signals in any and all frequencies. TENANT shall have the right to place on or about the Tower any and all telecommunications equipment and attendant facilities deemed necessary by TENANT in the operation and conduct of its business. The parties acknowledge and agree that TENANT is designing and constructing the Tower in order for the Tower to accommodate and to have the structural and design capacity necessary to support additional facilities TENANT may desire to place on the Tower during the term of this Agreement, as more particularly described v in Exhibit "D" attached hereto. b. In addition to TENANT's facilities located on or about the Tower, COUNTY shall have the exclusive right to locate on the top 30 feet and the non-exclusive right to locate on the Tower certain antennas and cables to be used for public service communication purposes by COUNTY, the location and description of which are more particularly identified in Exhibit "C" attached hereto$ TENANT covenants that the Tower will be designed to O accommodate the facilities identified in Exhibit OCO. Prior to co finalizing the tower design, COUNTY will be given the opportunity to to review the Tower design to determine that it meets the design and structural standards necessary to accommodate the facilities low identified in Exhibit "C ✓ co N 2 COUNTY must provide 30 -day written notice to TENANT before it may modify, alter or change the facilities identified in Exhibit "CO and/or prior to placing, modifying, altering or changing any additional facilities other than that which is described ;in Exhibit "C" on or about the Tower, COUNTY'S notice must describe the proposed modifications, alterations, changes and facilities. Prior to making any modification, alteration, change or addition to the facilities described in Exhibit "C", COUNTY must have performed and delivered to TENANT a structural analysis of the Tower'. .'The structural analysis must consider 1TENANT'S future facilities identified on Exhibit "D" and COUNTY's proposed modifications, alternations, changes and additions. The purpose of the structural analysis is to allow TENANT to determine whether such modification, alteration, change or additional facility or facilities will affect the structural integrity of the Tower or affect TENANT's ability to place additional facilities on the Tower. If TENANT determines that such additional facilities or such modifications, alterations or changes would affect the structural integrity of the Tower or affect TINANT'i future use of and placement: of additional facilities on the Tower, COUNTY shall take whatever action necessary, in cooperation with TENANT, to eliminate such effects. In no event may COUNTY's modification, alteration, change or addition to the facilities identified in Exhibit "C" interfere with or affect TENANT'S ability or desire to construct additional facilities on the Tower to accommodate TENANT'S increased customer demands and/or technological requirements. COUNTY "shall be responsible for all costs associated with preparing such an analysis and the costs, if any, of making any changes, modifications or alterations to the Tower necessary to accommodate COUNTY'S proposed modification, alteration, change or addition to its facilities. Any and all facilities placed on or any modifications to such facilities located on or about the Tower by COUNTY shall be purchased, installed and maintained by such party, at its expense. The installation, repair, alteration and/or maintenance of COUNTY's equipment shall be performed only by contractors or subcontractors who are qualified to perform such work in a manner consistent with TENANT's construction and maintenance standards. COUNTY must arrange for its contractor or subcontractor to include TENANT as an additional insured under their Comprehensive General Liability Policy in an aggregate amount of five million dollars. Prior to commencing such construction related activity, COUNTY must provide TENANT with a Certificate of Insurance evidencing such coverage and including TENANT as an additional insured. O c. TENANT shall have the right to occupy certain floor space Co within the Equipment Building and shall have the right to place to within such area, telecommunications equipment and attendant facilities necessary to the operation and maintenance of TENANT's .,. business. COUNTY shall have the right to occupy up to 700 square co feet of floor space located in the Equipment Building for the �. purpose of housing its telecommunication facilities. Q1 3 • U t• a w W _ 0 • 7. Site Plan: The parties hereby acknowledge that Exhibit "A" describes a parent tract of land. The parties agree that TENANT shall have the right to have the Property surveyed for the purposes of preparing a site plan and identifying that portion of the Property upon which the Tower and Equipment Building shall be constructed. Upon completion of the survey, the legal description described therein shall be attached to this Agreement as Exhibit "B" and shall be deemed to be an accurate description of the Property as such term is defined and used herein. The cost of preparing such a survey shall be borne by the TENANT. 8. termination: The TENANT shall have the right to terminate this Agreement if: a. TENANT fails to receive, obtain and/or maintain any consent, permit or approval of any entity necessary for TENANT to operate its business and/or to use the Property, Tower or Equipment Building an contemplated herein b. TENANT no longer desires, as determined in its sole discretion, to use or occupy the Propetty, the Tower and/or Equipment Buildings or c. The condition of the Property, the Tower and/or Equipment Building is deemed unsatisfactory to TENANT, as determined in its sole discretion. TENANT shall advise COUNTY of its intent to terminate by giving COUNTY written notice of termination, setting forth the effective date of such termination, to be delivered by certified mail, return receipt requested. Upon such termination, TENANT shall be relieved of any and all obligations under this Agreement and shall return the Property to COUNTY in accordance with paragraph 14 below. g, Approvalso Permits or Consents: COUNTY shall cooperate with and assist TENANT in obtaining any and all approvals, permits or consents necessary for TENANT to use the Property, Tower and Equipment Building as contemplated herein, which shall include but not be limited to, executing instruments and appearing at hearings concerning such approvals, permits and consents. TENANT shall be responsible for any costs incurred by COUNTY in connection with obtaining such approvals. 10. Maintenance: Each party shall maintain, at its expense, each party's respective telecommunication facilities located on or about the Property, the Tower and the Equipment Building. Each darty shall be responsible for maintaining that portion of the oor space of the Equipment Building occupied by such party& TENANT shall be responsible, during the effective period of this Agreement, for maintaining the Tower and the common areas of the Equipment Buildings 5 V O CD toa r CD r. CO. 11. Indemnities: a. TENANT shall indemnify and hold COUNTY harmless against any claims of liability or loss from personal injury or property damage resulting solely from or arising solely out of the use or occupancy of the Property by the TENANT, its servants or agents; b. To the extent that there is a waiver of sovereign immunity for the state or subdivisions of the state in tort actions 68.28 (Florida Statutes), and to the extent pursuant to sections 7 allowed by state law, COUNTY shall indemnify and hold TENANT liability harmless against any claims of bility or loss of personal attorneys' fees and costa, injury, property damage, including resulting from or arisinout of the COUNTY, its servants he use and occupancy of the and agents, C9 If COUNTY allows any other party (limited to county organizations) to occupy and maintain telecommunication facilities on or about the Tower in accordance with this Agreement, COUNTY shall require such party to indemnify TENANT for any claims, losses, attorney's fees and costs arising out of or in connection with such party's use of the Tower. 12. Insurance• a. TENANT shall maintain Commercial General Liability Insurance million dollars additional insured on suchpolicyorinclude COUNTY asan policies - be TENANT agrees that COUNTY may self -insure against any loss or damage which could be covered by a Commercial General Public Liability Insurance Policy. c. No party shall be liable to another party (or their successors or assigns) for any loss or damage caused by fire or any other risks enumerated in a standard "all risks' an ursn a Policy and, in the event of such incurred loss, no p y company shall have a subrogated claim against the other. 13. Taxes: TENANT shall pay any personal property taxeseand all other fees and assessments assessed on, or any portion taxes attributable to, its telecommunication facility located on or about the Tower or Equipment Building. COUNTY shall pay when due, all real property taxes attributable to the Property. However, TENANT shall pay any increase in real property taxes levied against the Property which iattributable to Property andCOUNTYsdirec to fur ish proof of E such T's use of t h increaseto TINANTI 14. ;_grrender of Proae v_0 Upon termination of this Agreement, TENANT shall, within a reasonable period, remove all of its personal property, including but not limited to its ku q.e a e 6 7 R "xa> telecommunication facilities located on or about the Tower and/or Equipment Building and all right, title and interest in and to the Tower and the Equipment Building shall vest in and become the property of COUNTY. In removing its personal property, TENANT must leave the Tower and Equipment Building in the condition that existed upon termination of this Agreement, subject to normal wear and tear. 15. Transfer of Title, cadet cniovmenz ana access w quo Prooerty: COUNTY warrants that it has valid leasehold to the Property and has the right to execute this Agreement and agrees that TENANT shall, subject to the terms and conditions of this Agreement, have the peaceable and quiet enjoyment and possession of the Property without any interference or hindrance from COUNTY or any persons lawfully claiming by, through or under COUNTY. COUNTY further covenants that there are no liens, judgments, impediments of title or any third party claims to, against or concerning the Property. 16, Subordinationi Thin Agreement shall not be subordinate to any mortgage entered into by COUNTY which, from time to time, may encumber all or any portion of the Property or right of way unless such mortgagee recognizes the validity of this Agreement and enters into a non -disturbance and attornment agreement with TENANT, in a form acceptable to TENANT, pursuant to which TENANT shall have the right to remain in occupance of and have access to the Property in the event COUNTY's interest in the property is foreclosed. The parties acknowltdge and agree that all instruments necessary to evidence subordination and the non -disturbance and attornment agreement shall be executed in a timely manner and in recordable form. 17. Condemnation: If a condemning authority takes all of the Property or any portion sufficient, in TENANT'S sole determination, to render the Property, the Tower and/or Equipment Building unsuitable for the use which TENANT was then making of the Property, the Tower and/or the Equipment Building, this Agreement shall terminate as of the date that title vests in the condemning authority. The parties shall be entitled to share in the condemnation proceeds in proportion to the values of their respective interest in the Property as such interest exists immediately prior to the termination of this Agreement (which for M TENANT shall include, where applicable, the value of its C telecommunication facilities, the Tower and the Equipment Building, moving expenses, prepaid rent and business dislocation expenses) co the sale of all or part of the Property to a purchaser with the power of eminent domain in the face of the exercise of such power, 47 shall be treated as a taking by condemnation. If all of the Property or any portion thereof is condemned by any legally Go constituted authority for any public use or purpose and TENANT's 0 ability to use the Property in accordance with the terms set forth herein is impaired, then this Agreement shall cease from the time that such condemning authority takes possession of the Property. iA ��";fn, • • Nothing in this provision shall be construed to limit or affect TENANT's right to an award of compensation in an eminent domain proceeding involving the taking of TENANT's leasehold interest hereunder. 18. Miscellaneous Provisions: a. it is agreed and understood that this Agreement contains all agreements, promises and understandings between the COUNTY and TENANT and that no verbal or oral agreements, promises or understanding shall be binding upon either the COUNTY or TENANT in any dispute, controversy or proceeding at law, land any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the parties. b. This Agreement and governed, interpreted, construed State of Florida. the performance thereof shall be and regulated by the laws of the c, Thin Agreement may be sold, assigned, sublet, licensed or transferred, in whole or in part, by TENANT without the consent of COUNTY to TENANT's parent company, principal, affiliate or subsidiaries of its principal or to any company with which TENANT is merged or consolidated. As to other parties, this Agreement may not be sold, assigned, sublet, licensed or transferred, in whole or in part, by TENANT without the prior written consent of COUNTY, which consent shall not be unreasonably withheld$ provided, however, COUNTY's consent shall not be required if TENANT remains primarily liable for the obligations imposed hereunder. COUNTY may not sell, assign, sublet, license or transfer this Agreement, in part or in whole, to any party without the prior written consent of TENANT, which may be withheld in its sole discretion. d. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested, addressed as follows (or any other address that the party to be notified may have designated to the sender by like notice): COUNTY: County of Indian River 1840 25th Street �. Vero Beach, FL 32960 Attn: Emergency Services Director C co to Co C1'1 y v C • • TENANT: Talcom, Inc. 1829 Corporate Drive Boynton Beach, FL 33426 Attn: James E. Randall and Legal Department 250 Australian Avenue 9th Floor West Palm Beach, FL 33401 Attn: William Higgins, Esquire e. This Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of the parties hereto. f, COUNTY and TENANT agree that this Agreement will be forwarded for recording or filing in the appropriate office of the County of Indian River, and COUNTY and TENANT agree to take such actions as may be necessary to permit such recording or filing. TENANT, at TENANT's option and expense, may obtain title insurance on the space leased herein. COUNTY shall cooperate with TENANT's efforts to obtain such title insurance by executing documents or, at COUNTY's expense, obtaining requested documentation as required by the title insurance company. If title is found to be defective, COUNTY shall use diligent effort to cure the defects in title. g. COUNTY hereby waives any and all lien rights it may have, statutory or otherwise, concerning any of TENANT's property or improvements or any portion thereof (except for the Tower and Equipment Building), which shall be deemed personal property for the purposes of this Agreement, regardless of whether or not same is deemed real or personal property under applicable laws, and COUNTY gives TENANT the right to remove all or any portion of same from time to time in TENANT's sole discretion without COUNTY's consent. h. COUNTY represents and warrants to TENANT that c hazardous substances have not been generated, stored or disposed of co on or about the Property, nor have the same been transported to or �. over the Property. "Hazardous substance" shall be interpreted p broadly to mean any substance or material defined or designated as co hazardous or toxic waste, hazardous or toxic material, hazardous or %0 toxic or radioactive substance or other similar term by any � federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, ap regulations or rules may be amended from time to timsj and it shall CAI be interpreted to include but not be limited to any substance fV which, after release into the environment, will and may reasonably y,.., ba'anticipated to cause sickness, death, or disease. COUNTY will hold TENANT harmless from and indemnify TENANT against and from any 9 :,:. 0 I damage, lose, expense, attorney's fee or liability resulting from any breach of this representation and warranty, to the extent allowed by law. i. In connection with any litigation arising out of this Agreement, the prevailing party, whether COUNTY or TENANT, shall be entitled to recover all reasonable costs incurred including reasonable attorney's fees for services rendered in connection with any enforcement of breach of contract, including appellate proceedings and post judgment proceedings. j. In accordance with Florida law, the following statement is hereby made: RADON GAS: Radon is a natural occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of' radon that exceed federal and state guidelines have been found in buildings in Florida, Additional information regarding radon and radon testing may be obtained from your county public health unit. k. The parties will execute two originals and COUNTY and TENANT shall each retain an original. 1. TENANT covenants that it will, not encumber nor create or grant a security interest in the Tower or Equipment Building. 19. ,COUNTY and TENANT shall be responsible for providing the items and;, ervices as listed on Exhibit E attached. IN. �TTf SS�va OF,',the parties hereto have set their hands and affix�!lacZh6i=; sptive zseale. tr . A )k ihon'i•�i �<s: AT'PE ' _ ,S`F�`+4 INDIAN RIVER COUNTY, FLORIDA 0EFI! B,, ON^^��TTI nl s6r�yr Fye BOARD OFXNT�7C COA4II�QNERS ice BY: J (dEvs..l�i.des�•S6L /# DATE: " APPROVED AS TO FORM BY: County Attorney 10 VP 771 . ;t WITNESS: STATE OF FLORIDA COUNTY OF INDIAN RIVER TALCOM, INC. A Florida Partnership MCCAW COMMUNICATIONS OF FLORIDA,INC., GENERAL PARTNER: The oregoing instrument w acknowledge before me this �� day of , 199 by Kenneth Macht, Chairman of the 80 of Cou y Commissioners of Indian Ri er County, Florida, who is personally known to me. wnTARY JUIBLIC: Sign Typed or Printed Signature: PATRICIA M. PoDG LY (seal) Mr coM`asAM 100100 ocPnes ( ) .� ne lase aomnwi Wo rw NUPAW, My Commission Expires: STATE OF FLORIDA COUNTY OF o f,4&Af 466AC-04 The f Qregoing instrument was acknowledged before me this •�✓�Ot day of ,(yQwi MA!!!! , 19950 by 0&W QfS4^4 to/N# w T of Talcom, Inc., who is personally known to m ed as identification. NOTARY PUBLIC: • `4 — ---'' Typed or printed Si atures SAVO SAAMA IWI"40 (seal) My Commission Expires: ..• . sow►wow►wauPs L::. ernr.reMeMe � ,., r 4;p __• STATE OF FLORIDA COUNTY OF INDIAN RIVER TALCOM, INC. A Florida Partnership MCCAW COMMUNICATIONS OF FLORIDA,INC., GENERAL PARTNER: The oregoing instrument w acknowledge before me this �� day of , 199 by Kenneth Macht, Chairman of the 80 of Cou y Commissioners of Indian Ri er County, Florida, who is personally known to me. wnTARY JUIBLIC: Sign Typed or Printed Signature: PATRICIA M. PoDG LY (seal) Mr coM`asAM 100100 ocPnes ( ) .� ne lase aomnwi Wo rw NUPAW, My Commission Expires: STATE OF FLORIDA COUNTY OF o f,4&Af 466AC-04 The f Qregoing instrument was acknowledged before me this •�✓�Ot day of ,(yQwi MA!!!! , 19950 by 0&W QfS4^4 to/N# w T of Talcom, Inc., who is personally known to m ed as identification. NOTARY PUBLIC: • `4 — ---'' Typed or printed Si atures SAVO SAAMA IWI"40 (seal) My Commission Expires: ..• . sow►wow►wauPs L::. ernr.reMeMe � ,., r 4;p EXHIBIT A LEGAL DESCRIPTION INDIAN RIVER SOUTH COMMUNICATION TOWER SITE The North 150 feet of the South 200 feet of the west 70 feet of the East 270 feet of the North 1/2 of the SW 1/4 of the NW 1/4 of Section 12, Township 33 South, Range 39 East. Lying in the City of Vero Beach, Indian River County, Florida. CA 11: EXHIBIT tTEM____.S _ TQBE PLACED ON TOwF^ BY *"'^reN atVER COUNTY 4 - DB 812 (3 TX 1 -RX) ANTENNAS 2 - 8 FOOT MICROWAVE DISHES WITH RADOME 3 - 200 FOOT 1-5/8" COPPER HARDLINE 1 - 200 FOOT 7/8" COPPER HARDLINE 1 - DB 8980 TOWER TOP AMP 4 - ROHN D1130 STANDOFF MOUNTS 9 = 160 FOOT ANDREWS EWP53 WAVEOUIDES • wM JONOTMallavel 31SX61mliW1011JI1* • w M 4 usim Twelve Model ALP9212 Swedcom antennas at 200 feet, as folbws: 4 at 0 degrees north; 4 at 120 degrees southeast, 4 at 240 degrees southwest. Three microwave dishes per attached diagram. EnuarT D (cont 'd) -1 U L MICROWAVEDISH ORIENTAT103N 8' 340' 160' lat 27-37-32.12 long 80-23-39.18 oto: c• Zn ;Amtoi a • EXHIBIT E it TALCOM, INC. will provide lightning protection in the form of a buried halo system around the structure. 2. TALCOM, INC. will provide a 23 -kilowatt, generator with I' automatic switch, fueled with propane gas, if available. If the above -referenced generator is not available with propane fuel capability, a diesel fuel generator or equivalent will be substituted. 3e TALCOM, INC. will provide air conditioning for both sides of shelter per site plan specifications. 4. TALCOM, INC. will provide distribution panels and electrical lighting to both sides of site. s• TALCOM. INC. understands and agrees to proportionately share the ongoing electrical costs at the site. 6e TALCOM, INC. will provide a two-inch conduit for fiber optic cable for the use of both parties, 7e TALCOM, INC. will provide an eight -foot fence with three strands of barbed wire on an angle brace around the structure and tower. s. TALCOM, INC. will provide cable bridge from shelter to tower for both parties. 1 1 rel RESPONSIBILITIES OF INDIAN RIVER COMMY f"COUNTY"f ! I M 1 F l' COUNTY will provide a total of three 2 -inch copper grounding � weds, one at each leg of the tower. q 4 to f w me SIVIOMM G~ ma" DOW MIR • sm FRONT ELEVATIQN •r -w aaQ M ffD[ fYRf1� 0a1 fqR &itfm QM � Qf1Y OiR aft r* Dow mm sono ~ rnr5nnan rf r o r MOMELEVATIGN •M 80®I(1AHZ ELEVATIONS a, a HAI, iMFlANPWMP F& rr rwrria ww OW M J . ANDS !1 O N AIb/RTlCRJwALN11V�. NQ. IIYQ M rMlt a ARC. 80OMHZ PLAN I. - , Is It LAI mIo Or kk Ilk a x 4�A _ - fYt3�J4 C .