HomeMy WebLinkAboutGround Option and Lease AgreementGROUND OPTION AND LEASE AGREEMENT
THIS AGREEMENT, made this Z f v day of February, 2007 by and
between WCA of St. Lucie, LLC, a Delaware limited liability company (the "LANDLORD")
and KEYS WI-FI Inc , a Florida Corporation, 104 Palmetto Ave Tavernier, Florida 33070 its
affiliates, successors and assigns, ( the "TENANT").
PROPERTY
LANDLORD is the owner of certain real property located in St. Lucie County,
State of Florida, a description of the LANDLORD's property being attached hereto as Exhibit
"A" and made a part hereof ("LANDLORD's Property"). TENANT desires to obtain an option
to lease a portion of the LANDLORD's Property which shall contain approximately 10 000
square feet (the "Leased Parcel"), and a right-of-way thereto (if necessary) as hereinafter
described (the Leased Parcel, and such right-of-way (if necessary) being hereinafter called the
"Leased Property"). The Leased Property is more specifically described in, and substantially
shown on, Exhibit "B" attached hereto and made a part hereof.
OPTION
NOW THEREFORE, in consideration of the sum of XXXXXXX Dollars ($
XXX) (the "Option Money"), to be paid by TENANT to LANDLORD upon TENANT's
execution of this Agreement, LANDLORD hereby grants to TENANT the exclusive right and
option (the "Option") to lease the Leased Property in accordance with the terms and conditions
set forth herein.
A. Option Period. The Option may be exercised at any time on or prior to
[ENTER EXERCISE DATE], 20_ (the "Option Period"). At TENANT's election and upon
TENANT's written notice to LANDLORD prior to expiration of the Option Period, the Option
Period may be further extended for one additional period of twelve (12) months, through and
including , 20_, with an additional payment of XXXXXX Dollars ($XXX), by
TENANT to LANDLORD for the extension of the Option Period. The Option Period may be
further extended by mutual written agreement. If TENANT fails to exercise the Option within
the Option Period as it may be extended as provided herein, the Option shall terminate, all rights
and privileges granted hereunder shall be deemed completely surrendered, LANDLORD shall
retain all money paid for the Option, and no additional money shall be payable by either party to
the other.
B. Transfer of Option. The Option may be sold, assigned, or transferred at
any time by TENANT to TENANT's parent company or any affiliate or subsidiary of, or partner
in TENANT or its parent company, or, with the prior written consent of LANDLORD, to any
third party agreeing to be subject to the terms of this Agreement. Otherwise, the Option may not
be sold, assigned or transferred without the written consent of LANDLORD, such consent not to
be unreasonably withheld, conditioned or delayed. From and after the date the Option has been
sold, assigned or transferred by TENANT to a third party agreeing to be subject to the terms
hereof (with the LANDLORD's prior written consent, if required above), TENANT shall
immediately be released from any and all liability under this Agreement, including the payment
of any rental or other sums due, without any further action.
C. Changes in Property During Ontion Period. If during the Option
Period or any extension thereof, or during the term of this Agreement if the Option is exercised,
LANDLORD decides to subdivide, sell, or change the status of the zoning of the Leased Parcel
or the LANDLORD's Property contiguous to, surrounding, or in the vicinity of the Leased
Property, LANDLORD shall immediately notify TENANT in writing. Any sale of the
LANDLORD's Property shall be subject to TENANT's rights under this Agreement.
LANDLORD agrees that during the Option Period or any extension thereof, or during the term of
this Agreement if the Option is exercised, LANDLORD shall not initiate or consent to any
change in the zoning of the Leased Parcel or LANDLORD's Property or impose or consent to any
other restriction that would prevent or limit TENANT from using the Leased Property for the
uses intended by TENANT as hereinafter set forth in this agreement.
D. Title. LANDLORD warrants that LANDLORD is seized of good and
marketable title to the LANDLORD's Property and has the full power and authority to enter into
and execute this Agreement. LANDLORD further warrants that. there , are no restrictive
covenants, or other encumbrances on the title to the LANDLORD's Property that would prevent
TENANT from using the Leased Property for the uses intended by TENANT as set forth in this
Agreement.
E. Inspections. Upon forty-eight (48) hours prior written notice from
TENANT to LANDLORD, LANDLORD shall permit TENANT or TENANT's employees,
agents, and contractors during the Option Period, and any extension thereof, free ingress and
egress to the Leased Property by TENANT or its employees, agents, and contractors to conduct
structural strength analyses, subsurface boring tests, environmental inspections (including Phase I
and Phase Il audits), radio frequency test, and such other tests, ivvestigations,_#�d similar
activities as TENANT may deem necessary (collectively "the Inspections'), at the sole cost of
TENANT. The scope, sequence, and timing of the Inspections shall be at the sole discretion of
TENANT; provided, however, that the Inspections shall not at any time unreasonably disturb or
interfere with the rights of the LANDLORD, its employees, agents or invitees on the
LANDLORD's Property. The Inspections may be commenced at any time during the
aforementioned Option Period and if the Option is exercised, at any time during the term of the
Agreement. TENANT and its employees, agents and contractors shall have the right to bring the
necessary vehicles and equipment onto the Leased Property and, if necessary, on the
LANDLORD's Property to conduct such tests, investigations, and similar activities. While
conducting the Inspections, TENANT shall maintain a general liability insurance policy in an
amount of not less than $1,000,000.00 per occurrence, insuring against liabilities which may
2
arise in connection with the Inspections and containing such other endorsements and provisions
as LANDLORD may reasonably require. TENANT shall provide to LANDLORD evidence of
such insurance prior to the commencement of any Inspections and from time to time thereafter at
the request of LANDLORD. TENANT shall not cause or permit any mechanic's liens,
materialmen's liens or other liens to be filed against the Property as a result of the Inspections.
TENANT shall indemnify and hold LANDLORD harmless against any loss or damage for
personal injury or physical damage to the Leased Property, the LANDLORD's Property, or the
property of third parties resulting from any Inspections. Upon written request, TENANT shall
furnish to LANDLORD copies of the environmental findings. However, LANDLORD shall not
rely on said environmental findings for anything outside this Agreement and shall indemnify and
hold TENANT harmless from such findings.
F. Surveys. LANDLORD also hereby grants to TENANT the right to survey
the Leased Parcel and LANDLORD's Property, and the legal description of the Leased Property
on the survey obtained by TENANT shall then become Exhibit "C", which shall be attached
hereto and made a part hereof, and shall control in the event of discrepancies between it and
Exhibit "B".
G. Governmental Approvals. TENANT's ability to use the Leased Property
is contingent upon its obtaining all certificates, permits, licenses, and other approvals that may be
required by any governmental authorities. LANDLORD shall cooperate with TENANT in its
effort to obtain such certificates, permits, licenses, and other approvals. During the Option
Period, and during the term of this Agreement if the Option is exercised, LANDLORD agrees to
sign such papers as are reasonably required to file applications with the appropriate zoning
authority and other governmental authorities for the proper zoning of the Leased Property and for
other certificates, permits, licenses, and approvals as are required for the use of the Leased
Property intended by the TENANT. TENANT will perform all other acts and bear all expenses
associated with any zoning or other procedure necessary to obtain any certificate, permit, license,
or approval for the Leased Property deemed necessary by TENANT. Unless such proceedings
materially and detrimentally affect LANDLORD or the Property owned by LANDLORD,
LANDLORD agrees not to register any written or verbal opposition to any such procedures.
H. Utility Services. During the Option Period, and during the term of this
Agreement if the Option is exercised, LANDLORD shall cooperate with TENANT in
TENANT's effort to obtain utility services along the access right-of-way contained in the
LANDLORD's Property , by signing such documents or easements as may be reasonably
required by the utility companies. In the event any utility company is unable or does not desire to
use the aforementioned right-of-way, LANDLORD hereby agrees to grant an additional right-of-
way in a location determined by LANDLORD that will not adversely affect LANDLORD and its
use of the Property, which right-of-way shall be granted either to TENANT or to the utility
company at no cost to TENANT. TENANT shall pay any attorneys' fees incurred by
LANDLORD in connection with the granting of such additional right-of-way. If LANDLORD
fails to fulfill LANDLORD's obligations to cooperate with TENANT as required herein in
3
obtaining the governmental approvals or utility services contemplated by this Agreement, then
TENANT shall give LANDLORD twenty-one (21) days prior written demand that LANDLORD
must fulfill LANDLORD's obligations to cooperate, and specifically, advise LANDLORD what
it must do. If after receiving such notice from TENANT, LANDLORD fails to cooperate with
TENANT's reasonable request, then in addition to any rights or remedies that TENANT may
have at law or in equity, TENANT shall also be entitled to reimbursement from LANDLORD,
upon fifteen (15) days prior written demand, of all costs and expenses incurred by TENANT in
connection with its activities under this Agreement, including but not limited to costs of
environmental assessments, title examinations, zoning application fees, and attorneys' fees and
other legal expenses of TENANT. In the event LANDLORD desires to relocate the utilities and
utility easement(s), LANDLORD will obtain all certificates, permits and other approvals required
by the utility company at LANDLORD's sole cost. All activities related to the relocation of such
utilities shall not interfere with the construction, maintenance, or operation of TENANT's
facility.
I. Exercise of Option. TENANT shall exercise the Option by written notice
to LANDLORD by certified mail, return receipt requested. The notice shall be deemed effective
on the date it is posted. On and after the date of such notice, this Agreement shall also constitute
a Lease Agreement between LANDLORD and TENANT on the following terms and conditions:
LEASE AGREEMENT
1. Lease of Property. LANDLORD hereby leases to TENANT the Leased
Parcel described above, which includes the grant of a nonexclusive right and easement during the
term of this Agreement 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 the twenty foot (20') wide right of way
extending from the nearest public right-of-way, which is known as [ENTER STREET
ADDRESS OR SITE IDENTIFIERI, to the Leased Parcel, as such right-of-way is shown on
Exhibit "B" attached hereto.
2. Initial Term and Rental. This Agreement shall be for an initial term of
five (5) years beginning on the date the Option is exercised by TENANT at an annual rental of
XXXXJt KXXXX Dollars ($xxxxxx), to be paid in equal monthly installments on the first day of
each month during the term, in advance, to the LANDLORD or to such other person, firm or
place as the LANDLORD may, from time to time, designate in writing at least thirty (30) days in
advance of any rental payment date. If the Option is exercised on a date other than the first day
of a calendar month, TENANT shall make a prorated payment of the installment of the annual
rental payable for the first and last month of the term of this Agreement.
3. Extension of Term. TENANT shall have the option to extend the term of
4
this Agreement for XXXX (x) additional consecutive five (X) year periods. Each option for an
extended term shall be deemed automatically exercised without notice by TENANT to
LANDLORD unless TENANT gives LANDLORD written notice of its intention not to exercise
any such extension option at least three (3) months prior to the end of the then current term. If
TENANT gives LANDLORD written notice of its intention not to exercise any such option, the
term of this Agreement shall expire at the end of the then current term. All references herein to
the term of this Agreement shall include the term as it is extended as provided in this Agreement.
4. Additional Rent, Escalation Clause. In each year after the first year of
the initial term, TENANT shall pay to LANDLORD as additional rent a sum equal to aXXXXr
percent (X%) per annum increase over the rent required for the immediately preceding year,
which payment shall be made in equal monthly installments.
5. Continuance of Lease. If, not more than six (6) and not less than three
(3) months prior to the end of the X (Xth) extended term, either LANDLORD or TENANT has
not given the other written notice of its desire that the term of this Agreement end at expiration of
the fifth (5th) extended tern, then upon the expiration of the xxxxx (xth) extended tern this
Agreement shall continue in force upon the same covenants, terms, and conditions for a further
term of one (1) year, and for annual terms thereafter until terminated by either party by giving to
the other written notice of its intention to so terminate at least three (3) months prior to the end of
any such annual term. Monthly rental during such annual terms shall be equal to the rent paid for
the last month of the xxxxx (Xth) extended term, plus a four percent (X%) per annum increase
over the rent paid during the immediately preceding year of the Lease.
6. Use. TENANT shall use the Leased Property for the purpose of
constructing, maintaining, and operating a communications facility and uses incidental thereto, as
determined by TENANT, now or in the future, to meet TENANT's telecommunication needs,
which may also include a security fence of chain link or comparable construction that may, at the
option of TENANT, be placed around the perimeter of the Leased Property (collectively, the
"Communications Facility").All improvements, modifications, supplements, replacements,
removals, or relocations, that are necessary for TENANT's continued use, shall be made at
TENANT's expense. LANDLORD grants TENANT the right to use only such portions of
LANDLORD's Property as are reasonably required by TENANT, as determined by
LANDLORD, during constructionand installation of the Communications Facility. TENANT
shall maintain the Leased Property in good condition and shall be solely responsible for the
repair, upkeep and maintenance of the Leased Property and of all of TENANT's improvements
on the Leased Property, excluding repair and maintenance due to the willful misconduct or
negligence of the LANDLORD, its employees, agents, or contractors.
(a) On the tower to be constructed by TENANT and the associated equipment,
LANDLORD additionally grants TENANT the exclusive right to sublease space on the proposed
tower facility to any telecommunications provider licensed by the FCC.
E
(b) TENANT shall use and occupy the Leased Property for the construction
of Buildings and constructidn and erection of a Tower and shallgiave the right to excavate any
portion thereof in order to install such foundations as may be required for such Buildings and
Towers. The premises shall be used as a Communication Center for all forms of communication
and related equipment.
(c) Flexible coaxial transmission line shall be installed between the Tower
and the radio equipment located in the equipment shelter.
7. Governmental Approvals. LANDLORD shall cooperate with TENANT
in its effort tot obtain and maintain in effect all certificates, permits, licenses, and other approvksa.?
required by'g0vemniental authorities for TENANT's use of the Leased Property. The obligations
of LANDLORD as set forth herein during the Option Period with respect to governmental
approvals shall continue throughout the term of this Agreement. If at any time during the term of
this Agreement, TENANT is unable to use the Leased Property for a Communications Facility in
the manner intended by TENANT due to imposed zoning conditions or requirements, or in the
event that after the exercise of the Option, any necessary certificate, permit, license, or approval
is finally rejected or any previously issued certificate, permit, license, or approval is canceled,
expires, lapses, or is otherwise withdrawn or terminated by the applicable governmental
authority, or radio frequency propagation tests are found to be unsatisfactory so that TENANT, in
its sole discretion, will be unable to use the Leased Property for a Communications Facility in the
manner intended by TENANT, TENANT shall have the right to terminate this Agreement by
giving LANDLORD ninety' (9.0) days advance written notice. In such case, LANDLORD shall
retain all rentals paid to LANDLORD through the termination date after the ninety (90) written
notice has been given to LANDLORD. Upon such termination, LANDLORD and TENANT
shall have no other further obligations to each other, other than TENANT's obligation to remove
all of the improvements it has constructed on the Leased Property and its property as hereinafter
provided in Section 24 hereof.
8. Interference. LANDLORD understands and agrees that the continuity of
TENANT's business is of paramount importance to TENANT. LANDLORD shall at all times
exercise the highest standard of care and judgment to prevent damage to TENANT's business.
(a) TENANT understands and agrees that the continuity of LANDLORD'S
business is of paramount importance to LANDLORD. TENANT shall at all times exercise the
highest standard of care and judgment to prevent damage to LANDLORD'S business.
9. Taxes. TENANT shall be responsible for making any necessary tax
returns for and paying any and all personal property taxes separately levied or assessed against
TENANT's facilities or the improvements constructed by TENANT on the Leased Property.
Taxes are not to be considered as additional rent, but rather as reimbursement to LANDLORD
and to be separately billed. TENANT shall pay for any documented increase in ad valorem real
estate taxes levied against the LANDLORD's Property which are directly attributable to the
improvements constructed by TENANT on the Leased Property and are not separately levied or
assessed by the taxing authorities against TENANT or the improvements of TENANT.
LANDLORD shall pay all other ad valorem real property taxes levied against the LANDLORD's
Property on or before the date such taxes become delinquent. LANDLORD hereby agrees that if
the taxes which are levied against the LANDLORD and TENANT's improvements on
LANDLORD's Property are incorrectly assessed, TENANT maintains the right to appeal the tax
assessment to the appropriate governmental authority, said appeal shall be paid for by TENANT.
Should the State in which the property is located offer an early payment tax incentive,
LANDLORD hereby agrees that TENANT shall be allowed to pay the taxes under the incentive
plan which shall allow for TENANT to take advantage of any offered incentives. LANDLORD
shall famish TENANT within thirty (30) days of receipt by LANDLORD or LANDLORD's
representative of the tax assessment for any assessed taxes which are levied against the Property.
LANDLORD'S ability to bill TENANT for said taxes is limited to the current year tax billing in
question. In no event will LANDLORD have the ability to bill for pro-rata share or estimates of
taxes on future tax billings.
10. Insurance. TENANT shall, at its sole cost and expense, at all times
during the term of this Agreement maintain in effect a policy or policies of insurance which are
reasonably acceptable to LANDLORD, as follows: a) covering its personal property located on
the Leased Property and TENANT's improvements to the Leased Property paid for and installed
by TENANT, providing protection against any peril included under insurance industry practices
within the classification "fire and extended coverage," providing protection as deemed desirable
by TENANT with respect to its personal property and to the full insurable value of its TENANT
improvements paid for by TENANT; and b) Commercial General Liability insurance with
minimum limits of $1,000,000 for injury to or death of one or more persons in any one
occurrence and $1,000,000 for damage to or destruction of properties in any one occurrence.
TENANT shall provide to LANDLORD copies of such policies which clearly reflect that
LANDLORD and LANDLORD's Property are protected by such policies. LANDLORD
understands that "Wind" insurance is not available at the time of the inception of this Lease. If
"Wind" insurance becomes available to Tenant during the term of this Lease (including any
extended term), Tenant shall provide such coverage for the benefit of Landlord, as well.
11. Indemnification.
(a) TENANT shall indemnify and hold LANDLORD harmless against any
liability or loss from personal injury or property damage resulting from or arising out of the use
and occupancy of the LANDLORD's Property by TENANT or its employees or agents,
excepting, however, such liabilities and losses as may be due to or caused by the acts or
omissions of LANDLORD or its employees or agents.
(b) LANDLORD shall indemnify and hold TENANT harmless against any
liability or loss from personal injury or property damage resulting from or arising out of the use
and occupancy of the LANDLORD's Property by LANDLORD or its employees or agents,
7
excepting, however, such liabilities and losses as may be due to or caused by the acts or
omissions of TENANT or its employees or agents.
12. Sale of Property. If LANDLORD, at any time during the initial or any
extended term of this Agreement, decides to sell, subdivide, or rezone any of the LANDLORD's
Property or the Leased Property which includes the Tower to a purchaser other than TENANT,
LANDLORD shall promptly notify TENANT in writing, and such sale shall be subject to this
Agreement and TENANT's rights hereunder. LANDLORD agrees not to sell, lease, or use any
areas of LANDLORD's Property for the installation, operation, or maintenance of other wireless
communications facilities if, such installation, operation, or maintenance would interfere with
TENANT's facilities as determined by radio propagation tests performed by TENANT at
purchasing parties expense. If the radio frequency propagation tests demonstrate levels of
interference which are materially unacceptable to TENANT, LANDLORD shall be prohibited from
selling, leasing, or using any areas of LANDLORD's Property. This Paragraph 13 will also fall
under the terms and obligations of Paragraph 8, if applicable. LANDLORD shall not be
prohibited from the selling, leasing, or use of any of LANDLORD's Property for non -wireless
communication use.
13. Ouiet Enioyment. LANDLORD covenants that TENANT, on paying
the rental and performing the covenants, terms and conditions required of TENANT contained
herein, shall peaceably and quietly have, hold and enjoy the Leased Property and the leasehold
estate granted to TENANT by virtue of this Agreement.
14. Assignment. This Agreement may be sold, assigned or transferred at any
time by TENANT to TENANT's parent company or any affiliate or subsidiary of TENANT or its
parent company or to any entity with or into which TENANT is merged or consolidated, or to
any entity resulting from a reorganization of TENANT or its parent company. Otherwise, this
Agreement may not be sold, assigned, or transferred without the prior written consent of
LANDLORD, such consent not to be unreasonably withheld.
15. Condemnation. If notice is given to LANDLORD that the Leased
Property will be condemned by any legally constituted public authority, then LANDLORD shall
promptly notify TENANT of such taking or condemnation. If the whole of the LANDLORD's
Property, or such portion thereof as will make the Leased Property unusable by TENANT for the
purposes herein leased, is condemned by any legally constituted public authority, then this
Agreement, and the term hereby granted, shall, at TENANT'S option, cease from the time when
possession thereof is taken by the public authority, and rental shall be accounted for as between
LANDLORD and TENANT as of that date. However, nothing in this paragraph shall be
construed to limit or adversely affect TENANT's right to seek an award of compensation from
any public authority that is seeking condemnation proceeding for the taking of TENANT's
leasehold interest hereunder or for the taking of TENANT's improvements, fixtures, equipment,
and personal property.
8
16. Casualty. In the event the Leased Property is destroyed or damaged in
whole or in part by casualty during the term of this Lease then, at Tenant's option (exercised by
prior written notice to LANDLORD), this Lease may be terminated as of the date of the event or
at any time within ninety (90) days thereafter and no further rent shall be due under the
Termination Section or any other Section of this Lease. In the event any Building on the Leased
Property (excluding any damage the repair of which is required to be completed by tenants of the
Building) is damaged to the extent of twenty-five percent (25%) or more of the cost of
replacement thereof (whether or not the Leased Property is damaged) and such damage (1) occurs
during the last two years of the Term (taking into account any extensions of the Term by Tenant
in accordance with the terms of this Lease), or (ii) in the reasonable judgment of Landlord,
cannot reasonably be repaired or restored within a period of three hundred and sixty-five (365)
days following commencement of such repair or restoration using standard working methods and
procedures, or (iii) is not, or would not have been, covered by a standard fire and extended
coverage insurance policy, or (iv) is compensable with insurance proceeds all or a significant
portion of which is required to be paid to the Mortgagee in reduction of the indebtedness secured
by the Mortgage, Landlord shall have the right and option, in its sole discretion, to terminate this
Lease upon the delivery of notice thereof to Tenant within ninety (90) days after the occurrence
of such damage or destruction. Any repairs which are required to be made to the Leased Property
or to any improvements located thereon shall be at the sole cost and expense of TENANT.
17. Subordination. If there is a mortgage on the LANDLORD's Property,
LANDLORD shall obtain for the benefit of TENANT a commercially reasonable Non -
Disturbance Agreement from the present and any future mortgagee(s) of holder(s) of a deed of
trust confirming that TENANT's right to quiet possession of the Premises during the Term and
any Extended Term shall not be disturbed, as long as TENANT is not in default under this Lease.
No such subordination shall be effective unless the holder of every such deed to secure debt or
mortgage shall, either in the deed to secure debt or mortgage or in a separate agreement with
TENANT, agrees that in the event of a foreclosure, or conveyance in lieu of foreclosure, of
LANDLORD's interest in the LANDLORD's Property, such holder shall recognize and confirm
the validity and existence of this Agreement and the rights of TENANT hereunder, and this
Agreement shall continue in full force and TENANT shall have the right to continue its use and
occupancy of the Leased Property in accordance with the provisions of this Agreement as long as
TENANT is not in default of this Agreement beyond applicable notice and cure periods.
TENANT shall execute in a timely manner whatever instruments may reasonably be required to
evidence the provisions of this paragraph. In the event the LANDLORD's Property is
encumbered by a deed to secure debt or mortgage on the date of the exercise of the Option,
LANDLORD, no later than thirty (30) days after the Option has been exercised, shall obtain and
fiunish to TENANT a non -disturbance agreement in recordable form from the holder of each
deed to secure debt or mortgage.
18. Title Insurance. TENANT, at TENANT's option and sole expense, may
obtain title insurance to cover the leasehold estate granted by this Agreement on the Leased
2
Property. LANDLORD shall cooperate with TENANT's efforts to obtain title insurance by
executing documents or obtaining requested documentation as required by the title insurance
company.
19. Hazardous Substances. LANDLORD warrants, represents, and agrees
that neither the LANDLORD nor, to the best of LANDLORD's knowledge, any third party has
used, generated, stored, or disposed of any Hazardous Materials in, on, or under the
LANDLORD's Property. "Hazardous Materials" shall mean petroleum or any petroleum
product, asbestos, and any other substance, chemical, or waste that is identified as hazardous,
toxic, or dangerous in any applicable Federal, State, or Local law, rule, regulation, order or
ordinance. TENANT shall indemnify, defend and hold LANDLORD harmless from any and all
claims, damages, fines, judgements, penalties, costs, liabilities or losses (including, without
limitation, any and all sums paid for settlement of claims, attorney's fees and consultant's and
expert's fees) from the presence or release of any Hazardous Materials on the LANDLORD's
Property if caused by TENANT or persons acting under TENANT. LANDLORD shall
indemnify, defend breach of LANDLORD's representations and warranty set forth above and
hold TENANT harmless from any and all claims, damages, fines, judgements, penalties, costs,
liabilities or losses (including, without limitation, any and all sums paid for settlement of claims,
attorney's fees and consultant's and expert's fees) from the presence or release of any Hazardous
Materials on the LANDLORD's Property unless caused by TENANT or persons acting under
TENANT.
21. Opportunity to Cure.
(a) If TENANT should fail to pay any rental or other amounts payable under
this Agreement when due, or if TENANT should fail to perform any other of the covenants,
terms, or conditions of this Agreement, prior to exercising any rights or remedies against
TENANT on account thereof, LANDLORD shall first provide TENANT with written notice
specifying the nature of the failure and provide TENANT with a fifteen (15) day period to cure
such failure (if the failure is a failure to pay rental or any other sum of money under this
Agreement) or a thirty (30) day period to cure such failure (if the failure is a failure to perform
any other covenant, term, or condition of this Agreement). If the failure is not a failure to pay
rental or any other sum of money hereunder but is not capable of being cured within a thirty (30)
day period, TENANT shall be afforded a reasonable period of time to cure the failure provided
that TENANT promptly commences curing the failure after the notice and prosecutes the cure to
completion with due diligence.
(b) In the event that LANDLORD is in default of its obligations under this
Agreement and such default continues for thirty (30) days after written notice from TENANT,
TENANT, may at its option and in any addition to any other right or remedy available hereunder,
or at law or equity incur reasonable expenses necessary to perform the obligation of
LANDLORD specified in such notice, and any amount paid by TENANT in so doing shall be
deemed paid for the account of LANDLORD, and LANDLORD agrees to reimburse TENANT
10
therefor and TENANT may set off from rent or other amounts due hereunder any reasonable
amount expended by TENANT as a result of such default.
22. Notices. Except as otherwise provided herein, any notices or demands
which are required by law or provided under the terms of this Agreement shall be given or made
by LANDLORD or TENANT in writing and shall be given by hand delivery or other similar
communication or sent via facsimile confirmed by an original hard copy or by certified or
registered mail, or by a national overnight receipted delivery services which provides signed
acknowledgments of receipt (including Federal Express, UPS, Emery, Purolator, DHL, Airborne
and other similar couriers delivery services) and addressed to the respective parties set forth
below. Such notices shall be deemed to have been given in the case of a facsimile transmission
when sent; in the case of certified or registered mail, two (2) business days after being deposited
in the United States mail with postage prepaid, and in the case of overnight receipted delivery
service, one (1) business day after the notice is deposited with the overnight delivery service.
Every notice, demand, or request hereunder shall be sent to the addresses listed below:
If to LANDLORD: WCA of St. Lucie, LLC
Attention: Regional Vice President
P. O. Box 895
Fort Meade, Florida 33841-0895
With a copy to: WCA Waste Corporation
Attention: General Counsel
One Riverway, Suite 1400
Houston, Texas 77056
Telephone: (713) 292-2400
If to TENANT: Keys WI-FI Inc
104 Palmetto Ave
Tavernier, F133070
305-852-8171
With a copy to: Mrs. Annette Bie
497 20`s Avenue
Indian Rocks Beach, FL 33785
727-517-0296
Rejection or refusal to accept delivery of any notice, or the inability to deliver any notice because
of a changed address of which no notice was given, shall be deemed to be receipt of any such
notice.
11
23. TERMINATION
(a) Notwithstanding any other termination rights available to
TENANT under this Agreement, TENANT, at its sole and absolute discretion, shall have the
right to terminate this Agreement with ninety (90) days prior written notice to LANDLORD and
a lump sum payment to LANDLORD in an amount equal to six (6) months rent or the total of the
remaining months of the term, whichever is less. The rental rate shall be computed at the rate
that is in effect at the time of termination. At termination, TENANT shall execute upon the
request of the LANDLORD a written cancellation of the Agreement vacating the Property in
recordable form and TENANT shall have no other further obligations, other than TENANT's
obligation to remove its property as hereinafter provided.
(b) In addition to and in not limitation of any other provisions of this
Agreement, TENANT shall have the right, exercisable by at least thirty (30) days prior written
notice thereof to LANDLORD, to terminate this Agreement upon occurrence of one or more of
the following events:
(i) if LANDLORD shall violate or breach, or shall fail fully and
completely to observe, keep, satisfy, perform and comply with, any agreement, term,
representation, warranty, covenant, and shall not cure such violation, breach or failure within
thirty (30) days after TENANT gives LANDLORD written notice thereof, or, if such failure shall
be incapable of cure within thirty (30) days, if LANDLORD shall not commence to cure such
failure within such thirty (30) day period and continuously prosecute the performance of the same
to completion with due diligence; or
(ii) the commencement by LANDLORD of a voluntary case under the
federal bankruptcy laws, as now constituted or hereafter amended, or the consent by
LANDLORD to the appointment of a receiver, liquidator, assignee, trustee, custodian, (or other
similar official) of any substantial part of the property of LANDLORD, or to the taking of
possession of any such property by any such functionary or the making of an any assignment for
the benefit of creditors by LANDLORD; or
(iii) pursuant to the terms of Paragraph 17 Subordination.
24. Removal of Improvements. Title to all improvements constructed or
installed by TENANT on the Property shall remain with TENANT, and all improvements
constructed or installed by TENANT shall at all times be and remain the property of TENANT,
regardless of whether such improvements are attached or affixed to the Property. Furthermore all
improvements constructed or installed by TENANT shall be removable at the expiration or
earlier termination of this Agreement or any renewal or extension thereof, provided TENANT
shall not at such time be in default under any covenant or agreement contained in this
Agreement. TENANT, upon termination of this Agreement, shall, within sixty (60) days,
remove all improvements, fixtures, and personal property constructed or installed on the Property
by TENANT and restore the Property to substantially the same condition as received, reasonable
12
wear and tear and damage by insured casualty excepted. TENANT shall also be required to
remove any foundations and, driveways (to a minimum depth of one (1) foot below grade, with
such area then brought up to grade), or underground cables or wires and all other improvements,
whether visible or otherwise, made by TENANT to the Leased Property. If such removal causes
TENANT to remain on the LANDLORD's Property after the effective date of termination of this
Agreement, TENANT shall pay rent at the then existing monthly rate, or on the existing monthly
pro rata basis if based upon a longer payment term, until such time as the removal is completed
which shall not extend past sixty (60) days after the date of termination. If TENANT fails to so
remove all of its property as described above within sixty (60) days after the effective date of
termination of this Agreement, LANDLORD may go upon the Leased Property and remove all of
TENANT's property. TENANT shall be liable to LANDLORD for the entire cost of such
removal, or LANDLORD may bring an action at law or in equity against TENANT to require the
removal of the TENANT's property.
25. Miscellaneous. This Agreement cannot be modified except by a written
modification executed by LANDLORD and TENANT in the same manner as this Agreement is
executed. The headings, captions and numbers in this Agreement are solely for convenience and
shall not be considered in construing or interpreting any provision in this Agreement. Wherever
appropriate in this Agreement, personal pronouns shall be deemed to include other genders and
the singular to include the plural, if applicable. This Agreement contains all agreements,
promises and understandings between the LANDLORD and TENANT, and no verbal or oral
agreements, promises, statements, assertions or representations by LANDLORD or TENANT or
any employees, agents, contractors or other representations of either, shall be binding upon
LANDLORD or TENANT.
26. Contractual Limitations Period. No action or proceeding may be
maintained or brought against a party to this Agreement unless such action or proceeding is
commenced within twenty-four (24) months after the cause of action accrued unless such cause
of action could not have reasonably been discovered by such party.
27. Security Interest. It is the express intent of the parties to this Agreement
that LANDLORD have no security interest whatsoever in any personal property of TENANT,
and, to the extent that any applicable statute, code, or law grants LANDLORD such an interest,
LANDLORD does hereby expressly waive any rights thereto.
28. Representation. LANDLORD and TENANT warrant to each other that
they were represented in this transaction by and
respectively and by no other real estate brokerage
firms. Additionally, the parties warrant to each other that they will each hold the other harmless
from and indemnify each other against claims made by any broker claiming to have represented
the indemnifying party in this transaction.
29. Governing Law. This Agreement shall be governed and interpreted by,
13
and construed in accordance with, the laws of the State where the Property is located.
30. Attorney's Fees. In any proceeding which either party may prosecute to
enforce its rights hereunder, the unsuccessful party shall pay all costs incurred by the prevailing
party, including reasonable attorneys' fees.
31. Memorandum of Agreement. At the request and expense of TENANT,
LANDLORD agrees to execute a memorandum or short form of this Agreement, in recordable
form, setting forth a description of the Property, the term of this Agreement and other
information desired by TENANT for the purpose of giving public notice thereof to third parties.
32. Confidentiality. LANDLORD agrees not to discuss publicly, advertise,
nor publish in any newspaper, journal, periodical, magazine, or other form of mass media, the
terms or conditions of this Agreement. Doing so shall constitute a default under this Agreement.
It is agreed that the parties to this Agreement will not discuss the terms and conditions contained
herein with any unrelated third parties.
33. Binding Effect. This Agreement shall extend to and bind the heirs,
personal representatives, successors, and assigns of LANDLORD and TENANT and shall
constitute covenants running with the land.
34. Counterparts. This Agreement may be executed in several counterparts,
each of which shall constitute an original and all of which shall constitute the same Agreement.
14
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed
their respective seals.
LANDLORD:
WCA OF St. Lucie, LLC
By:
Title: V
Witne /
Print Name:
Witness
Print Name: 141,7i e l
STATE OF FLORIDA
COUNTY OF SARASOTA
The foregoing instrument was acknowledged before me this2—V61ay of February,
2007 by 54ae f e-d , the Pr,iddm/ /P of WCA of
St. Lucie, LLC, a Delaware limited liability company, on behalf of said limited liability
company.
o°""„ DI4INE P1= iC
W Wac
+� 'Notary Pubtic • Sfo}e oP Florida Notary Public, State of Florida
.�,9fV'PBond8d8VNaftOM1Not ry4Aq
TENANT:
Keys WI-FI, INC.
104 Palmetto Avenue
Tavernier, FL 33070
305-852-8(J.Z1
By:
IN
Witness �A I
Print Name: /"� P ,2 e, S � !
STATE OF FLORIDA
COUNTY OF /De
Tax ID#�O�/�DOG$�
The foregoing instrument was acknowledged before me this _/,� day of ,, 2003F
by Rick Richter as President of Keys WI-FI , Inc. who is personally known to me or wfio has
produced as identification and who did (did not) take an oath.
Thy f regoi�}g instrument was acknowledged befo me this day of February, 2007 by
(� the of Keys Wi-Fi, Inc., a
corporation, on behalf of said corporatio
State of Florida
M
DESCRIPTION OF LEASED PREMISES
To the Lease dated February _, 2007, by and between WCA of St. Lucie,LLC as
LANDLORD, and Keys WI-FI, Inc. as TENANT.
The Leased Premises is legally described as follows:
10,000 sq. ft parcel located at the southwest corner of the parent parcel. Survey to be attached
when completed..
17
B��E�Si34d�
tttd d;H t3� �lkkjt!$'sl�y�dyddd:!�fd 88AeRR$a1Sill 11
dd�Ht See°SYH9i/Y�:Y�d•adH R8�d6. .gil0.aep[I�Y$BSe� ��gr.�� �� H
, qqgg g
r
i
e
6
i
!
f
__ i
DESCRIPTION OF ACCESS EASEMENT
To the Lease dated February 1 2007, by and between WCA of St. Lucie, LLC, as
LANDLORD, and Keys WI-FI, Inc. as TENANT.
[See Attached]
18
DESCRIPTION
BEING A PARCEL OF LAND LYING IN SECTION 1, TOWNSHIP 37 SOUTH, RANGE
38 EAST, PUBLIC RECORDS OF ST. LUCIE COUNTY, FL., MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
A 20 FOOT WIDE PARCEL BOUNDED ON THE EAST BY THE EAST LINE OF
SECTION 1, AND BOUNDED ON THE WEST BY A LINE WHICH BEARS NORTH
00'00'54" EAST, LYING 10 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED
CENTERLINE:
COMMENCE AT THE NORTHEAST CORNER OF SECTION 1, THENCE SOUTH
00'00'54" WEST ALONG THE EAST LINE OF SECTION 1, A DISTANCE OF 3421.09
FEET TO THE POINT OF BEGINNING; THENCE NORTH 81'53'50" WEST, A
DISTANCE OF 145.62 FEET; THENCE NORTH 89'59'11" WEST, A DISTANCE OF
203.02 FEET, THENCE SOUTH 67'40'34" WEST, A DISTANCE OF 186.83 FEET TO
THE POINT OF TERMINATION.
PARCEL CONTAINS 0.246 ACRES MORE OR LESS.
SKETCH OF DESCRIPTION
OF
ACCESS EASEMENT
Prepared For
KEYS WI-FI INC.
Sheet 1 of 2
job #: 06-605.1
CONSULTING ENGINEERS
Date: 8-23-07
&
File: 06-605esmt—s—d
CTERPENINGINC.
LAND SURVEYORS
CULPEPPERe
Tech: ERM
e 2seo sounl zstn STREET
FORT PIERCE. FLORIDA 34981
CERTIFICATION No. Ul 4286 (772) 464 3537
S67'40'34"W
186.83'
w
0
0
0
O
z
LEGEND
SKETCH TO ACCOMPANY
DESCRIPTION
THIS IS NOT A SURVEY
P.O.T.
N89'59'11 "W
o$ 203.02'
POB - POINT OF BEGINNING
POC = POINT OF COMMENCEMENT
POT = POINT OF TERMINATION
R\W - RIGHT—OF—WAY
q = CENTERDNE
BEARINGS SHOWN HEREON ARE REFERENCED TO THE
EAST LINE OF SECTION 1, HAVING A BEARING OF
SOUTH 00'00'54" WEST.
SKETCH OF DESCRIPTION
OF
ACCESS EASEMENT
Prepared For
KEYS WI-FI INC.
36
P.O.C.
NE CORNER
SECTION 1,
TOWNSHIP 37S,
RANGE 38E
N81'53'50"W
145.62'
P.O.B.
GRAPHIC SCALE
100 0 50 100
( D7 FECr )
1 Inch - 100 R
31
N
z
0
F
w
N
0
0
w
z
Z
3
w
r)
Q
O
D'
LLJ
Z
J
LLJ
0
z
Q
ry
Sheet 2 of 2
job #: 06-605.1
CONSULTING ENGINEERS
Date: 8-23-07
&
File: 06-605esmt—s—dCT!RTIFICATION
CULPEPPER LAND SURVEYORS
Tech: ERM
2980 SWTH 25N SDREET
TERPENINGIN0. FORT PIERCE, FLORIDA 34981
No. U3 4286 (7P2) 484 3537
DESCRIPTION
BEING A PARCEL OF LAND LYING IN SECTION 1, TOWNSHIP 37 SOUTH, RANGE
38 EAST, PUBLIC RECORDS OF ST. LUCIE COUNTY, FL., MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHEAST CORNER OF SECTION 1, THENCE SOUTH
00'00'54" WEST ALONG THE EAST LINE OF SECTION 1, A DISTANCE OF 3550.81
FEET TO THE POINT OF BEGINNING; THENCE CONTINUE SOUTH 00'00'54" WEST
ALONG THE EAST LINE OF SECTION 1, A DISTANCE OF 20.00 FEET; THENCE
NORTH 89'59'06" WEST, A DISTANCE OF 540.00 FEET; THENCE NORTH
00'00'54" EAST, A DISTANCE OF 10.00 FEET; THENCE SOUTH 89'59'06" EAST,
A DISTANCE OF 20.00 FEET; THENCE NORTH 00'00'54" EAST, A DISTANCE OF
10.00 FEET; THENCE SOUTH 89'59'06" EAST, A DISTANCE OF 520.00 FEET TO
THE POINT OF BEGINNING.
PARCEL CONTAINS 0.243 ACRES MORE OR LESS.
SKETCH OF DESCRIPTION
OF
UTILITY EASEMENT
Prepared For
KEYS WI-FI INC.
Sheet 1 of 2
job 06-605.1
CONSULTING ENGINEERS
Date:: 8-23-07
&
File: 06-605esmt—s—dCTJ
CULPEPPER LAND SURVEYORS
Tech: ERM
2980 SUM 25tn STREET
TERPENING.91a. FORT PIERCE, FLORIDA 34981
RmFicA110N No. LD 4286 (772) 464-3537
S89'59'06"E
20.00'
LEGEND
SKETCH TO ACCOMPANY
DESCRIPTION
THIS IS NOT A SURVEY
GRAPHIC SCALE
100 0 so 100
Dr nET)
1 Inch - 100 ft
N00'00'54"E
10.00'
S 89'59'06" E
N 89'59'06" IN
N00'00'54"E
10.00'
POB = POINT OF BEGINNING
POC = POINT OF COMMENCEMENT
R\W = RIGHT—OF—WAY
BEARINGS SHOWN HEREON ARE REFERENCED TO THE
EAST LINE OF SECTION 1, HAVING A BEARING OF
SOUTH 00'00'54' WEST.
SKETCH OF DESCRIPTION
OF
UTILITY EASEMENT
Prepared For
KEYS WI-FI INC.
P.O.C.
NE CORNER
SECTION 1,
TOWNSHIP 37S,
RANGE 38E
P.O.B.
520.00'
540.
36
31
L
�o
O
Sheet 2 of 2
job /j: 06-605.1
CONSULTING ENGINEERS
Date: 8-23-07
&
File: 06-605esmt2
CTI
ULPEPPER k LAND SURVEYORS
Tech: ERM
0 2980 SOUTH 231h STREET
TERPENINQ7 FORT PIERCE, FLORIDA 34951
RTIFICATION No. LB 4288 (772) 484-3537