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HomeMy WebLinkAboutAPPROVED,144286-1-05-13-2015 leaseLESSEE Site I.D.: Sands on the Ocean, No. 68870 BUILDING AND ROOFTOP LEASE AGREEMENT This Building and Rooftop Lease Agreement (the "Agreement") made this 4�;__ day of Wco , 20IS between The Sands on the Ocean, a Condominium, Section 1 Association, Inc., a Florida not -for -profit corporation with its principal offices located at 3100 N Hwy AIA, Office, Ft. Pierce, Florida 34949, hereinafter designated LESSOR and Verizon Wireless Personal Communications LP d/b/a Verizon Wireless, a Delaware limited partnership, with its principal offices at One Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920 (telephone number 866-862-4404), hereinafter designated LESSEE. LESSOR and LESSEE are at times collectively referred to hereinafter as the "Parties" or individually as the "Party. " WITNES SETH In consideration of the mutual covenants contained herein and intending to be legally bound hereby, the Parties hereto agree as follows: 1. PREMISES. LESSOR hereby leases to LESSEE approximately forty (40) square feet of space (the "Floor Space") and approximately two hundred sixty (260) square feet on the roof (the "Rooftop Space") of the building (the `Building") located at 3100 N Hwy AIA, Ft. Pierce, St. Lucie County, Florida, the underlying real property of which is legally described in Exhibit "A" attached hereto and made a part hereof (the Building and such real property are hereinafter sometimes collectively referred to as the "Property"), for the installation, operation and maintenance of communications equipment; together with such additional space on the roof of the Building sufficient for the installation, operation and maintenance of antennas (the "Antenna Space"); together with such additional space within the Building and on the roof of the Building for the installation, operation and maintenance of wires, cables, conduits and pipes (the "Cabling Space") running between and among the Floor Space, Rooftop Space and Antenna Space and to all necessary electrical and telephone utility sources located within the Building or on the Property; together with the non-exclusive right of ingress and egress from a public right- of-way, seven (7) days a week, twenty four (24) hours a day, over the Property and in and through the Building to and from the Premises (as hereinafter defined) for the purpose of installation, operation and maintenance of LESSEE's communications facility. Notwithstanding the foregoing, for security purposes, access to the Premises after ordinary business hours (9:00 a.m. — 5:00 p.m.) is subject to the following procedures except in the case of an emergency: LESSEE must call the building manager at (772) 332-0371 (cellular telephone number), at which time the building manager will make arrangements for LESSEE to access the Premises as soon as is reasonably possible, but in no event later than 24 hours after LESSEE contacted LESSOR by telephone. LESSOR will notify LESSEE in writing of any change in the foregoing telephone numbers. LESSOR hereby agrees that the building manager or his/her designee will be on -call seven (7) days a week, twenty four (24) hours a day, in order to provide LESSEE access to the Premises. The Floor Space, Rooftop Space, Antenna Space and Cabling Space are hereinafter collectively referred to as the "Premises" and are as shown on Exhibit "B" attached hereto and made a part hereof. LESSEE shall have no right to occupy space not shown on Exhibit "B". In the event there are not sufficient electric and telephone utility sources located within the Building or on the Property, LESSOR agrees to grant LESSEE or the local utility provider the right to install such utilities on, over and/or under the Property and through the Building necessary for LESSEE to operate its communications facility, provided the location of such utilities shall be as reasonably designated by LESSOR. LESSEE acknowledges that, as of the date on which this Agreement is fully executed, there are two (2) existing antennas as well as related equipment and facilities located on the roof of the Building. 2. DELIVERY. LESSEE represents that it has inspected and examined the Property and Premises and shall accept the Property and Premises in "as is" condition as such condition existed on such date of inspection. LESSOR shall deliver the Premises to LESSEE on the Commencement Date, as hereinafter defined, in the same condition as on the day of inspection and the rooftop area where LESSEE's equipment will be installed shall be in a condition ready for LESSEE's construction of its improvements and clean and free of debris. LESSOR further represents and warrants to LESSEE that LESSOR has no knowledge of any claim having been made by any governmental agency that a violation of applicable building codes, regulations, or ordinances exists with regard to the Building, or any part thereof, as of the Commencement Date. 3. TERM; RENTAL; ELECTRICAL. a. This Agreement shall be effective as of the date of execution by both Parties, provided, however, the initial term shall be for five (5) years and shall commence on the Commencement Date (as hereinafter defined) at which time rental payments shall commence and be due at a total annual rental of Eighteen Thousand Nine Hundred Seventy Two and No/100 Dollars ($18,972.00) to be paid in equal monthly installments on the first day of the month, in advance, to LESSOR or to such other person, firm or place as LESSOR may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date by notice given in accordance with Paragraph 24 below. The Agreement shall commence based upon the date LESSEE is granted a building permit by the governmental agency charged with issuing such permits, or on the first day of January, 2016 whichever occurs first. In the event the date at which LESSEE is granted a building permit is determinative and such date falls between the 1" and 15th of the month, the Agreement shall commence on the V of that month and if such date falls between the 16th and 3 1 " of the month, then the Agreement shall commence on the 15t day of the following month (either of the foregoing or January 1, 2016 if applicable, being the "Commencement Date"). LESSOR and LESSEE acknowledge and agree that initial rental payment(s) shall not actually be sent by LESSEE until thirty (30) days after the Commencement Date. By way of illustration of the preceding sentence, if the Commencement Date is January 1, LESSEE shall send to the LESSOR the rental payments for January 1 and February 1 by February 1. Upon agreement of the Parties, LESSEE may pay rent by electronic funds transfer and in such event, LESSOR agrees to provide to LESSEE bank routing information for such purpose upon request of LESSEE. b. LESSOR hereby agrees to provide to LESSEE certain documentation (the "Rental Documentation") evidencing LESSOR's interest in, and right to receive payments under, this Agreement, including without limitation: (i) documentation, acceptable to LESSEE in LESSEE's reasonable discretion, evidencing LESSOR's good and sufficient title to and/or interest in the Property and right to receive rental payments and other benefits hereunder; (ii) a complete and fully executed Internal Revenue Service Form W-9, or equivalent, in a form acceptable to LESSEE, for any party to whom rental payments are to be made pursuant to this Agreement; and (iii) other documentation requested by LESSEE in LESSEE's reasonable discretion. From time to time during the Term of this Agreement and within thirty (30) days of a written request from LESSEE, LESSOR agrees to provide updated Rental Documentation in a form reasonably acceptable to LESSEE. The Rental Documentation shall be provided to LESSEE in accordance with the provisions of and at the address given in Paragraph 24. Delivery of Rental Documentation to LESSEE shall be a prerequisite for the payment of any rent by LESSEE and notwithstanding anything to the contrary herein, LESSEE shall have no obligation to make any rental payments until Rental Documentation has been supplied to LESSEE as provided herein. Within fifteen (15) days of obtaining an interest in the Property or this Agreement, any assignee(s), transferce(s) or other successor(s) in interest of LESSOR shall provide to LESSEE Rental Documentation in the manner set forth in the preceding paragraph. From time to time during the Term of this Agreement and within thirty (30) days of a written request from LESSEE, any assignee(s) or transferee(s) of LESSOR agrees to provide updated Rental Documentation in a form reasonably acceptable to LESSEE. Delivery of Rental Documentation to LESSEE by any assignee(s), transferee(s) or other successor(s) in interest of LESSOR shall be a prerequisite for the payment of any rent by LESSEE to such party and notwithstanding anything to the contrary herein, LESSEE shall have no obligation to make any rental payments to any assignee(s), transferce(s) or other successor(s) in interest of LESSOR until Rental Documentation has been supplied to LESSEE as provided herein. C. LESSOR shall, at all times during the Term, provide electrical service and telephone service access within the Premises. If permitted by the local utility company servicing the Premises, LESSEE shall furnish and install an electrical meter at the Premises for the measurement of electrical power used by LESSEE's installation. In the alternative, if permitted by the local utility company servicing the Premises, LESSEE shall furnish and install an electrical sub -meter at the Premises for the measurement of electrical power used by LESSEE's installation. In the event such sub -meter is installed, the LESSEE shall pay the utility directly for its power consumption, if billed by the utility, and if not billed by the utility, then the LESSEE shall pay the LESSOR thirty (30) days after receipt of an invoice from LESSOR indicating the usage amount based upon LESSOR's reading of the sub -meter. All invoices for power consumption shall be sent by LESSOR to LESSEE at Verizon Wireless, MIS 3846, P.O. Box 2375, Spokane, Washington 99210-2375 and must show "Location Code 280707" on the face of the invoice. LESSEE shall be permitted at any time during the Term, to install, maintain and/or provide access to and use of, as necessary (during any power interruption at the Premises), a temporary power source, and all related equipment and appurtenances within the Premises, or elsewhere on the Property in such locations as reasonably approved by LESSOR. LESSEE shall have the right to install conduits connecting the temporary power source and related appurtenances to the Premises. d. LESSEE shall pay to LESSOR a capital contribution in the amount of Seven Thousand Five Hundred and XX/100 Dollars ($7,500.00) to reimburse LESSOR for LESSOR's legal fees incurred in furtherance of the execution of this Agreement. LESSEE shall remit such payment within forty-five (45) days of full execution of this Agreement. 4. EXTENSIONS. This Agreement shall automatically be extended for four (4) additional five (5) year terms unless LESSEE terminates it at the end of the then current term by giving LESSOR written notice of the intent to terminate at least six (6) months prior to the end of the then current term. 5. EXTENSION RENTALS. Commencing on the first annual anniversary of the Commencement Date and on each annual anniversary thereafter during the term of this Agreement (including all extension terms described in Paragraph 4 above), annual rent shall increase by an amount equal to two point five percent (2.5%) of the annual rent due for the immediately preceding lease year. 6. ADDITIONAL EXTENSIONS. If at the end of the fourth (4th) five (5) year extension term this Agreement has not been terminated by either Party by giving to the other written notice of an intention to terminate it at least three (3) months prior to the end of such term, this Agreement shall continue in force upon the same covenants, terms and conditions for a further term of five (5) years and for five (5) year 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 such term. Annual rental for each year of such additional five (5) year term shall be an amount equal to the annual rental payable with respect to the immediately preceding lease year increased by two point five percent (2.5%). The initial term and all extensions shall be collectively referred to herein as the "Term". 7. TAXES. LESSEE shall have the responsibility to pay any personal property, real estate taxes, assessments, or charges owed on the Property which LESSOR demonstrates is the result of LESSEE's use of the Premises and/or the installation, maintenance, and operation of the LESSEE's improvements, and any sales tax imposed on the rent (except to the extent that LESSEE is or may become exempt from the payment of sales tax in the jurisdiction in which the Property is located), including any increase in real estate taxes at the Property which LESSOR demonstrates arises from the LESSEE's improvements and/or LESSEE's use of the Premises. LESSOR and. LESSEE shall each be responsible for the payment of any taxes, levies, assessments and other charges imposed including franchise and similar taxes imposed upon the business conducted by LESSOR or LESSEE at the Property. Notwithstanding the foregoing, LESSEE shall not have the obligation to pay any tax, assessment, or charge that LESSEE is disputing in good faith in appropriate proceedings prior to a final determination that such tax is properly assessed provided that no lien attaches to the Property. Nothing in this Paragraph shall be construed as making LESSEE liable for any portion of LESSOR's income taxes in connection with any Property or otherwise. Except as set forth in this Paragraph, LESSOR shall have the responsibility to pay any personal property, real estate taxes, assessments, or charges owed on the Property and shall do so prior to the imposition of any lien on the Property. All amounts due under this Paragraph 7 shall be paid by LESSEE within thirty (30) days of receipt of an invoice sent by LESSOR. LESSEE shall have the right, at its sole option and at its sole cost and expense, to appeal, challenge or seek modification of any tax assessment or billing for which LESSEE is wholly or partly responsible for payment. LESSOR shall reasonably cooperate with LESSEE at LESSEE's expense in filing, prosecuting and perfecting any appeal or challenge to taxes as set forth in the preceding sentence, including but not limited to, executing any consent, appeal or other similar 4 document. In the event that as a result of any appeal or challenge by LESSEE, there is a reduction, credit or repayment received by the LESSOR for any taxes previously paid by LESSEE, LESSOR agrees to promptly reimburse to LESSEE the amount of said reduction, credit or repayment. In the event that LESSEE does not have the standing rights to pursue a good faith and reasonable dispute of any taxes under this paragraph, LESSOR will pursue such dispute at LESSEE's sole cost and expense upon written request of LESSEE. 8. USE; GOVERNMENTAL APPROVALS. LESSEE shall use the Premises for the purpose of constructing, maintaining, repairing and operating a communications facility and uses incidental thereto. All improvements, equipment, antennas and conduits shall be at LESSEE's expense and their installation shall be at the discretion and option of LESSEE. LESSEUs initial installations shall be subject to LESSOR's prior approval, which approval shall not be unreasonably withheld, delayed or conditioned. Thereafter, LESSEE shall have the right to replace, repair, add or otherwise modify its initial installations or any portion thereof, without LESSOR's approval, provided LESSEE does not install any equipment outside the boundaries of the Premises and/or the structural integrity of the roof of the Building is not adversely affected by any such replacement, repair, addition or modification. In the event LESSOR's approval is required, LESSOR agrees not to unreasonably withhold, delay or condition its consent. It is understood and agreed that LESSEE's ability to use the Premises is contingent upon its obtaining after the execution date of this Agreement all of the certificates, permits and other approvals (collectively the "Governmental Approvals") that may be required by any Federal, State or Local authorities as well as a satisfactory building structural analysis which will permit LESSEE use of the Premises as set forth above. LESSOR shall cooperate with LESSEE in its effort to obtain such approvals and shall take no action which would adversely affect the status of the Property with respect to the proposed use thereof by LESSEE. LESSOR and LESSEE understand and agree that LESSOR has made no representations or warranties regarding LESSERs ability to obtain such Governmental Approvals. In the event that (i) any of such applications for such Governmental Approvals should be finally rejected; (ii) any Governmental Approval issued to LESSEE is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority; (iii) LESSEE determines that such Governmental Approvals may not be obtained in a timely manner; (iv) LESSEE determines that any building structural analysis is unsatisfactory; (v) LESSEE determines that the Premises is no longer technically compatible for its use, or (vi) LESSEE, in its sole discretion, determines that the Premises is obsolete or unnecessary, LESSEE shall have the right to terminate this Agreement. Notice of LESSEE's exercise of its right to terminate shall be given to LESSOR in writing by certified mail, return receipt requested, and shall be effective upon the mailing of such notice by LESSEE, or upon such later date as designated by LESSEE. All rentals paid to said termination date shall be retained by LESSOR. Upon such termination, this Agreement shall be of no further force or effect except to the extent of the representations, warranties and indemnities made by each Party to the other hereunder. Otherwise, the LESSEE shall have no further obligations for the payment of rent to LESSOR. 9. MAINTENANCE. a. During the Term, LESSEE will maintain its equipment within the Premises in good condition, reasonable wear and tear excepted, but excluding any items which are the responsibility of LESSOR pursuant to Paragraph 9(b)below. 5 b. During the Term, LESSOR shall maintain, in good operating condition and repair, the structural elements of the Building and the Premises, and all existing Building systems (including, but not limited to, the foundations, exterior walls, structural condition of interior bearing walls, exterior roof fire sprinkler and/or standpipe and hose or other automatic fire extinguishing system, fire hydrants, parking lots, walkways, parkways, driveways, landscaping, fences, signs and utility systems serving the common areas, as applicable) and the common areas. LESSOR shall repair any defect in the above within thirty (30) days, or such shorter period as may be required by any governmental authority having jurisdiction, after receipt of written notice from LESSEE describing such defect, unless the defect constitutes an emergency, in which case LESSOR shall cure the defect as quickly as possible, but not later than five (5) days after receipt of notice, provided LESSOR shall have such extended period as may be required beyond the thirty (30) days, as applicable, if the nature of the cure is such that it reasonably requires more than thirty (30) days and LESSOR commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. If LESSOR fails to make such repairs, LESSEE may do so, and the cost thereof shall be payable by LESSOR to LESSEE on demand together with interest thereon from the date of payment at the greater of (i) ten percent (10%) per annum, or (ii) the highest rate permitted by applicable Laws, or, at LESSEE'S option, LESSEE may deduct such amounts paid out of any rents or other sums that may be due or owing under this Agreement. In the event of an emergency, LESSEE, at its option, may make such repairs at LESSOR's expense, before giving any written notice, but LESSEE shall notify LESSOR in writing within three (3) business days following such emergency. C. Upon request of the LESSOR, LESSEE at its cost agrees to relocate its equipment on a temporary basis to another location on the Property, hereinafter referred to as the "Temporary Relocation," for the purpose of LESSOR performing maintenance, repair or similar work at the Property or in the Building that cannot be completed without the temporary relocation of the LESSEE's equipment, provided that: i. The Temporary Relocation is similar to LESSEE's existing location in size and is fully compatible for LESSEE'S use, in LESSEE's reasonable determination; I LESSOR gives LESSEE at least ninety (90) days written notice prior to requiring LESSEE to relocate; iii. LESSEE's use at the Premises is not interrupted or diminished during the relocation and LESSEE is allowed, if necessary, in LESSEE's reasonable determination, to place a temporary installation on the Property during any such relocation; iv. Upon the completion of any maintenance, repair or similar work by LESSOR, LESSEE is permitted to return to its original location from the temporary location; and V. Notwithstanding the foregoing, LESSEE shall pay the cost of such relocation in the event that such maintenance is required due to the negligence or willful misconduct of LESSEE or its agents or contractors. 10. INDEMNIFICATION. Subject to Paragraph 11 below, each Party shall indemnify and hold the other harmless against any claim of liability or loss from personal injury or property damage resulting from or arising out of the negligence or willful misconduct of the indemnifying Party, its employees, contractors or agents, except to the extent such claims or damages may be due to or caused by the negligence or willful misconduct of the other Party, or its employees, contractors or agents. 11. INSURANCE. a. The Parties hereby waive and release any and all rights of action for negligence against the other which may hereafter arise on account of damage to the Premises or to the Property, resulting from any fire, or other casualty of the kind covered by standard fire insurance policies with extended coverage, regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the Parties, or either of them. These waivers and releases shall apply between the Parties and they shall also apply to any claims under or through either Party as a result of any asserted right of subrogation. All such policies of insurance obtained by either Party concerning the Premises or the Property shall waive the insurer's right of subrogation against the other Party. b. LESSOR and LESSEE each agree that at its own cost and expense, each will maintain commercial general liability insurance with limits not less than $5,000,000 per occurrence for injury (including death) and for damage or destruction to property. LESSOR and LESSEE each agree that it will include the other Party as an additional insured. C. In addition, LESSOR shall obtain and keep in force during the Term a policy or policies insuring against loss or damage to the Building in amounts consistent with the requirements of Chapter 718, Florida Statutes (the Florida Condominium Act). 12. LIMITATION OF LIABILITY. Except for indemnification pursuant to paragraphs 10 and 30, neither Party shall be liable to the other, or any of their respective agents, representatives, employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise. 13. ANNUAL TERMINATION. Notwithstanding anything to the contrary contained herein, provided LESSEE is not in default hereunder beyond applicable notice and cure periods, after the expiration of the initial five (5) year term LESSEE shall have the right to terminate this Agreement upon the annual anniversary of the Commencement Date provided that three (3) months prior notice is given to LESSOR. 14. INTERFERENCE. a. LESSEE agrees to install equipment of the type and frequency which will not cause harmful interference which is measurable in accordance with then existing industry standards to any equipment of LESSOR or other lessees of the Property which equipment existed on the Property prior to the date this Agreement is executed by the Parties. In the event any after -installed LESSEE's equipment causes such interference, and after LESSOR has notified LESSEE in writing of such interference, within five (5) business days LESSEE will take all commercially reasonable steps necessary to correct and eliminate the interference, including but not limited to, at LESSEE's option, powering down such equipment and later powering up such equipment for intermittent testing. In no event will LESSOR be entitled to terminate this Agreement or relocate the equipment as long as LESSEE is making a good faith effort to remedy the interference issue. LESSOR agrees that LESSOR and/or any other tenants of the Property who currently have or in the future take possession of the Property will be permitted to install only such equipment that is of the type and frequency which will not cause harmful interference which is measurable in accordance with then existing industry standards to the then existing equipment of LESSEE. The Parties acknowledge that there will not be an adequate remedy at law for noncompliance with the provisions of this Paragraph and therefore, either Party shall have the right to equitable remedies, such as, without limitation, injunctive relief and specific performance. b. Notwithstanding any provision in this Agreement to the contrary, LESSEE specifically acknowledges and agrees that any and all personal consumer electronics, appliances and equipment that one might reasonably expect to be on or about a structure such as the Building (including, for example but without limitation, televisions, radios, computers, washers, dryers and similar equipment) may be operated on the Property by LESSOR's unit owners and invitees. If at any time LESSEE's equipment causes interference with such personal consumer devices (as long as such devices are operating in accordance with law, including, if applicable, on the appropriate FCC -licensed frequencies), LESSEE agrees to correct the problem within thirty (30) days of being notified of same in writing, provided however, if LESSOR includes evidence that LESSEE's equipment is the source of such interference with such written notice then LESSEE shall promptly take all commercially reasonable steps necessary to correct and eliminate the interference. Should such interference not be able to be corrected within thirty (30) days of such written notification, then LESSEE shall be obligated to power down the equipment of LESSEE causing the interference until such time as the interference can be cured (however, LESSEE may power up such equipment from time to time for intermittent testing purposes). If said interference cannot be cured within ninety (90) days, then LESSEE, in its sole discretion, may elect to terminate this Agreement. 15. REMOVAL AT END OF TERM. LESSEE shall, upon expiration of the Term, or within sixty (60) days after any earlier termination of the Agreement, remove its equipment, conduits, fixtures and all personal property and restore the Premises to its original condition, reasonable wear and tear and casualty damage excepted. LESSOR agrees and acknowledges that all of the equipment, conduits, fixtures and personal property of LESSEE shall remain the personal property of LESSEE and LESSEE shall have the right to remove the same at any time during the Term, whether or not said items are considered fixtures and attachments to real property under applicable Laws (as defined in Paragraph 34 below). If such time for removal causes LESSEE to remain on the Premises after termination of this Agreement, LESSEE shall pay rent at the then existing monthly rate or on the existing monthly pro-rata basis if based upon 8 a longer payment term, until such time as the removal of the building, antenna structure, fixtures and all personal property are completed. LESSOR expressly waives all rights of levy, distraint or execution with respect to LESSEE's property, including without limitation any statutory or common law security interest or landlord's lien for rent. 16. HOLDOVER. LESSEE has no right to retain possession of the Premises or any part thereof beyond the expiration of that removal period set forth in Paragraph 15 herein, unless the Parties are negotiating a new lease or lease extension in good faith. In the event that the Parties are not in the process of negotiating a new lease or lease extension in good faith, LESSEE holds over in violation of Paragraph 15 and this Paragraph 16, then the rent then in effect payable from and after the time of the expiration or earlier removal period set forth in Paragraph 15 shall be equal to the rent applicable during the month immediately preceding such expiration or earlier termination. In addition to the foregoing, in the event LESSEE retains possession of the Premises beyond the timeframes designated above, LESSOR shall have all rights granted under Florida law. 17. RIGHT OF FIRST REFUSAL. If LESSOR elects, during the Term (i) to sell or otherwise transfer all or any portion of the Property, whether separately or as part of a larger parcel of which the Property is a part, or (ii) to grant to a third party by easement or other legal instrument an interest in and to that portion of the Building and or Property occupied by LESSEE, or a larger portion thereof, for the purpose of operating and maintaining communications facilities or the management thereof, with or without an assignment of this Agreement to such third party, LESSEE shall have the right of first refusal to meet any bona fide offer of sale or transfer on the same terms and conditions of such offer. If LESSEE fails to meet such bona fide offer within thirty (30) days after written notice thereof from LESSOR, LESSOR may sell or grant the easement or interest in the Property or portion thereof to such third person in accordance with the terms and conditions of such third party offer. For purposes of this Paragraph, any transfer, bequest or devise of LESSOR's interest in the Property as a result of the death of LESSOR, whether by will or intestate succession, or any conveyance to LESSOR's family members by direct conveyance or by conveyance to a trust for the benefit of family members shall not be considered a sale of the Property for which LESSEE has any right of first refusal. 18. RIGHTS UPON SALE. Should LESSOR at any time during the Term decide (i) to sell or transfer all or any part of the Property or the Building thereon to a purchaser other than LESSEE or (ii) to grant to a third party by easement or other legal instrument an interest in and to that portion of the Building and or Property occupied by LESSEE, or a larger portion thereof, for the purpose of operating and maintaining communications facilities or the management thereof, such sale or grant of an easement or interest therein shall be under and subject to this Agreement and any such purchaser or transferee shall recognize LESSEE's rights hereunder under the terns of this Agreement. To the extent that LESSOR grants to a third party by easement or other legal instrument an interest in and to that portion of the Building and/or Property occupied by LESSEE for the purpose of operating and maintaining communications facilities or the management thereof and in conjunction therewith, assigns this Agreement to said third party, LESSOR shall not be released from its obligations to LESSEE under this Agreement, and LESSEE shall have the right to look to LESSOR and the third party for the full performance of this Agreement. 9 19. QUIET ENJOYMENT. LESSOR covenants that LESSEE, on paying the rent and performing the covenants herein, shall peaceably and quietly have, hold and enjoy the Premises. 20. TITLE. LESSOR covenants that it is an "association" as defined in Chapter 718 of the Florida Statutes (the "Condominium Acf) and that the Premises is part of the "common elements" of a "condominium" (both as defined in the Condominium Act). LESSOR covenants that its members are composed exclusively of the individual condominium unit owners, or their elected or appointed representatives. LESSOR further covenants that, pursuant to the rights granted to LESSOR in the governing documents of the condominium and the Condominium Act, LESSOR operates and maintains the common elements of the Property (including without limitation the Premises) as the lawful representative of the individual condominium unit owners of the Building, and that LESSOR as representative of said condominium unit owners has full right and authority to execute this Agreement and perform its obligations hereunder. LESSOR further covenants that there are no covenants, easements, restrictions or agreements binding on LESSOR or the Property that prevent the use of the Premises by LESSEE as set forth in this Agreement. LESSOR agrees to indemnify and hold LESSEE harmless from any loss or liability arising out of, or in connection with, any breach of any of the representations, warranties or covenants made by LESSOR in this paragraph. 21. INTEGRATION. It is agreed and understood that this Agreement contains all agreements, promises and understandings between LESSOR and LESSEE and that no verbal or oral agreements, promises or understandings shall be binding upon either LESSOR or LESSEE in any dispute, controversy or proceeding at law, and any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing signed by the Parties or in a written acknowledgment in the case provided in Paragraph 3. In the event any provision of the Agreement is found to be invalid or unenforceable, such finding shall not affect the validity and enforceability of the remaining provisions of this Agreement. The failure of either Party to insist upon strict performance of any of the terms or conditions of this Agreement or to exercise any of its rights under the Agreement shall not waive such rights and such Party shall have the right to enforce such rights at any time and take such action as may be lawful and authorized under this Agreement, in law or in equity. 22. GOVERNING LAW. This Agreement and the performance thereof shall be governed, interpreted, construed and regulated by the Laws of the State of the State of Florida. Venue shall be in St. Lucie County, Florida or in any federal court having jurisdiction over St. Lucie County, Florida. 23. ASSIGNMENT. This Agreement may be sold, assigned or transferred by the LESSEE without any approval or consent of the LESSOR to the LESSEE's principal, affiliates, subsidiaries of its principal or to any entity which acquires all or substantially all of LESSEE's assets in the market defined by the Federal Communications Commission in which the Property is located by reason of a merger, acquisition or other business reorganization. As to other parties, this Agreement may not be sold, assigned or transferred without the written consent of the LESSOR, which such consent will not be unreasonably withheld, delayed or conditioned. No change of stock ownership, partnership interest or control of LESSEE or transfer upon partnership or corporate dissolution of LESSEE shall constitute an assignment hereunder. 10 24. NOTICES. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courier, provided the courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt from the sender, addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice): LESSOR: The Sands on the Ocean, a Condominium, Section 1 Association, Inc. 3100 N Hwy AIA, Office Ft. Pierce, Florida 34949 Attn: Richard Esteves, Board President LESSEE: Verizon Wireless Personal Communications LP d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing. 25. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal representative, successors and assigns of the Parties hereto. 26. Intentionally omitted. 27. RECORDING. LESSOR agrees to execute a Memorandum of this Agreement which LESSEE may record with the appropriate recording officer. The date set forth in the Memorandum of Lease is for recording purposes only and bears no reference to commencement of either the Term or rent payments. 28. DEFAULT. a. In the event there is a breach by LESSEE with respect to any of the provisions of this Agreement or its obligations under it, including the payment of rent, LESSOR shall give LESSEE written notice of such breach. After receipt of such written notice, LESSEE shall have fifteen (15) days in which to cure any monetary breach and thirty (30) days in which to cure any non -monetary breach, provided LESSEE shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and LESSEE commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. LESSOR may not maintain any action or effect any remedies for default against LESSEE unless and until LESSEE has failed to cure the breach within the time periods provided in this Paragraph. b. In the event there is a breach by LESSOR with respect to any of the provisions of this Agreement or its obligations under it, LESSEE shall give LESSOR written notice of such breach. After receipt of such written notice, LESSOR shall have thirty (30) days in which to cure any such breach, provided LESSOR shall have such extended period as may be 11 required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and LESSOR commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. LESSEE may not maintain any action or effect any remedies for default against LESSOR unless and until LESSOR has failed to cure the breach within the time periods provided in this Paragraph. Notwithstanding the foregoing to the contrary, it shall be a default under this Agreement if LESSOR fails, within five (5) days after receipt of written notice of such breach, to perform an obligation required to be performed by LESSOR if the failure to perform such an obligation interferes with LESSEE's ability to conduct its business in the Building; provided, however, that if the nature of LESSOR's obligation is such that more than five (5) days after such notice is reasonably required for its performance, then it shall not be a default under this Agreement if performance is commenced within such five (5) day period and thereafter diligently pursued to completion. LESSEE may not maintain any action or effect any remedies for default against LESSOR unless and until LESSOR has failed to cure the breach within the time periods provided in this Paragraph. 29. REMEDIES. Upon a default, the non -defaulting Party shall have all rights afforded at law or in equity. Additionally, the non -defaulting Party may at its option (but without obligation to do so), perform the defaulting Party's duty or obligation on the defaulting Party's behalf, including but not limited to the obtaining of reasonably required insurance policies. The costs and expenses of any such performance by the non -defaulting Party shall be due and payable by the defaulting Party upon invoice therefor. In the event of a default by either Party with respect to a material provision of this Agreement, without limiting the non -defaulting Parry in the exercise of any right or remedy which the non -defaulting Party may have by reason of such default, the non -defaulting Party may terminate the Agreement and/or pursue any remedy now or hereafter available to the non -defaulting Party under the Laws or judicial decisions of the state in which the Premises are located; provided, however, LESSOR shall use reasonable efforts to mitigate its damages in connection with a default by LESSEE. If the non -defaulting Party so performs any of defaulting Party's obligations hereunder, the full amount of the reasonable and actual cost and expense incurred by the non -defaulting Party shall immediately be due and owing. In the event that LESSOR so performs any of LESSEE's obligations hereunder such amount due shall be considered additional rent hereunder. In the event LESSEE performs any of LESSOR's obligations hereunder, LESSOR shall pay to LESSEE upon demand the full undisputed amount thereof with interest thereon from the date of payment at the greater of (i) ten percent (10%) per annum, or (ii) the highest rate permitted by applicable Laws. Notwithstanding the foregoing, if LESSOR does not pay LESSEE the full undisputed amount within thirty (30) days of its receipt of an invoice setting forth the amount due from LESSOR, LESSEE may offset the full undisputed amount, including all accrued interest, due against all fees due and owing to LESSOR until the full undisputed amount, including all accrued interest, is fully reimbursed to LESSEE. 30. ENVIRONMENTAL. a. LESSOR will be responsible for all obligations of compliance with any and all environmental and industrial hygiene laws, including any regulations, guidelines, s andards, or policies of any governmental authorities regulating or imposing standards of li, bility or standards of conduct with regard to any environmental or industrial hygiene 12 conditions or concerns as may now or at any time hereafter be in effect, that are or were in any way related to activity now conducted in, on, or in any way related to the Building or Property, unless such conditions or concerns are caused by the specific activities of LESSEE in the Premises. b. LESSOR shall hold LESSEE harmless and indemnify LESSEE from and assume all duties, responsibility and liability at LESSOR's sole cost and expense, for all duties, responsibilities, and liability (for payment of penalties, sanctions, forfeitures, losses, costs, or damages) and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is in any way related to: a) failure to comply with any environmental or industrial hygiene law, including without limitation any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene concerns or conditions as may now or at any time hereafter be in effect, unless such non- compliance results from conditions caused by LESSEE; and b) any environmental or industrial hygiene conditions arising out of or in any way related to the condition of the Building or Property or activities conducted thereon, unless such environmental conditions are caused by LESSEE. 31. CASUALTY. In the event of damage by fire or other casualty to the Building or Premises that cannot reasonably be expected to be repaired within forty-five (45) days following same or, if the Property is damaged by fire or other casualty so that such damage may reasonably be expected to disrupt LESSEE's operations at the Premises for more than forty-five (45) days, then LESSEE may, at any time following such fire or other casualty, provided LESSOR has not completed the restoration required to permit LESSEE to resume its operation at the Premises, terminate this Agreement upon fifteen (15) days prior written notice to LESSOR. Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement and the Parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under this Agreement. Notwithstanding the foregoing, the rent shall abate during the period of repair following such fire or other casualty in proportion to the degree to which LESSEE's use of the Premises is impaired. However, rent shall not abate in the event that such casualty was the result of the negligence or intentional misconduct of LESSEE or its agents or contractors. 32. CONDEMNATION. In the event of any condemnation of all or any portion of the Property, this Agreement shall terminate as to the part so taken as of the date the condemning authority takes title or possession, whichever occurs first. If as a result of a partial condemnation of the Premises or Building, LESSEE, in LESSEE's sole discretion, is unable to use the Premises for the purposes intended hereunder, or if such condemnation may reasonably be expected to disrupt LESSEE's operations at the Premises for more than forty-five (45) days, LESSEE may, at LESSEE'S option, to be exercised in writing within fifteen (15) days after LESSOR shall have given LESSEE written notice of such taking (or in the absence of such notice, within fifteen (15) days after the condemning authority shall have taken possession) terminate this Agreement as of the date the condemning authority takes such possession. LESSEE may on its own behalf make a claim in any condemnation proceeding involving the Premises for losses related to the equipment, conduits, fixtures, its relocation costs and its damages and losses (but not for the loss 13 of its leasehold interest). Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement and the Parties shall make an appropriate adjustment as of such termination date with respect to payments due to the other under this Agreement. If LESSEE does not terminate this Agreement in accordance with the foregoing, this Agreement shall remain in full force and effect as to the portion of the Premises remaining, except that the rent shall be reduced in the same proportion as the rentable floor area of the Premises taken bears to the total rentable floor area of the Premises. In the event that this Agreement is not terminated by reason of such condemnation, LESSOR shall promptly repair any damage to the Premises caused by such condemning authority. 33. SUBMISSION OF AGREEMENT/PARTIAL INVALIDITY/AUTHORITY. The submission of this Agreement for examination does not constitute an offer to lease the Premises and this Agreement becomes effective only upon the full execution of this Agreement by the Parties. If any provision herein is invalid, it shall be considered deleted from this Agreement and shall not invalidate the remaining provisions of this Agreement. Each of the Parties hereto warrants to the other that the person or persons executing this Agreement on behalf of such Party has the full right, power and authority to enter into and execute this Agreement on such Parry's behalf and that no consent from any other person or entity is necessary as a condition precedent to the legal effect of this Agreement. 34. APPLICABLE LAWS. During the Term, LESSOR shall maintain, as it relates to LESSEE's use, the Property, the Building, Building systems, common areas of the Building, and all structural elements of the Premises in compliance with all applicable laws, rules, regulations, ordinances, directives, covenants, easements, zoning and land use regulations, and restrictions of record, permits, building codes, and the requirements of any applicable fire insurance underwriter or rating bureau, now in effect or which may hereafter come into effect (including, without limitation, laws regulating hazardous substances) (collectively "Laws"). LESSEE shall, in respect to the condition of the Premises and at LESSEE's sole cost and expense, comply with (a) all Laws relating solely to LESSEE's specific and unique nature of use of the Premises (other than general office use); and (b) all building codes requiring modifications to the Premises due to the improvements being made by LESSEE in the Premises. It shall be LESSOR's obligation to comply with all Laws relating to the Building in general, without regard to specific use (including, without limitation, modifications required to enable LESSEE to obtain all necessary building permits). 35. SURVIVAL. The provisions of the Agreement relating to indemnification from one Party to the other Party shall survive any termination or expiration of this Agreement. Additionally, any provisions of this Agreement which require performance subsequent to the termination or expiration of this Agreement shall also survive such termination or expiration. 36. CAPTIONS. The captions contained in this Agreement are inserted for convenience only and are not intended to be part of the Agreement. They shall not affect or be utilized in the construction or interpretation of the Agreement. 37. RADON GAS. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are 14 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 health department. This notice is provided pursuant to Section 404.056 of the Florida Statutes. 38. TERMINATION FOR ADVERSE DECLARATION AMENDMENT. The Parties acknowledge that the Property is subject to the terms and restrictions set forth in that certain Declaration of Condominium of THE SANDS ON THE OCEAN, A CONDOMINIUM, SECTION I, dated June 29, 1983, recorded June 29, 1983, in Official Records Book 404, Page 1995, as amended by Certificate of Amendment dated April 28, 1989, recorded May 31, 1989, in Official Records Book 639, Page 1149, as amended by Certificate of Amendment dated April 3, 1990, recorded April 9, 1990, in Official Records Book 685, Page 2759, as amended by Certificate of Amendment dated March 8, 1991, recorded March 12, 1991, in Official Records Book 729, Page 2462, as amended by Certificate of Amendment dated July 15, 1993, recorded July 16, 1993, in Official Records Book 850, Page 1933, as amended by Certificate of Amendment dated October 20, 1994, recorded October 26, 1994, in Official Records Book 926, Page 1603, as amended by Certificate of Amendment dated May 10, 2001, recorded May 31, 2001, in Official Records Book 1397, Page 2949, as affected by Statement Concerning the Amendment to the Declaration of Condominium, dated July 20, 2001, recorded August 7, 2001, in Official Records Book 1420, Page 1948, as corrected by Corrective Certificate of Amendment dated December 6, 2001, recorded December 27, 2001, in Official Records Book 1471, Page 785, as affected by Statement Concerning the Corrective Certificate of Amendment dated January 16, 2002, recorded January 16, 2002, in Official Records Book 1480, Page 1692, as corrected by Corrective Certificate of Amendment dated July 30, 2002, recorded August 29, 2002, in Official Records Book 1573, Page 2971, as amended by Certificate of Amendment dated September 10, 2002, recorded September 13, 2002, in Official Records Book 1580, Page 1977, as affected by Statement Regarding the Certificate of Amendment dated January 3, 2003, recorded January 3, 2003, in Official Records Book 1636, Page 1816, as amended by Certificate of Amendment dated February 6, 2003, recorded May 13, 2003, in Official Records Book 1711, Page 1602, as affected by Written Action Of The Board Of Administration dated August 1, 2003, recorded August 11, 2003, in Official Records Book 1771, Page 2393, as amended by Certificate of Amendment dated March 15, 2004, recorded May 5, 2004, in Official Records Book 1958, Page 2648, as amended by Certificate of Amendment dated April 6, 2005, recorded April 15, 2005, in Official Records Book 2215, Page 1796, as corrected by Corrective Certificate of Amendment dated October 15, 2005, recorded October 25, 2007, in Official Records Book 2897, Page 48, as corrected by Corrective Certificate of Amendment dated October 15, 2004, recorded October 25, 2007, in Official Records Book 2897, Page 51, and as further amended by Certificate of Amendment dated October 25, 2010, recorded Novembers, 2010, in Official Records Book 3243, Page 425, all of the Public Records of St. Lucie County, Florida (collectively, as amended, the "Declaration"). LESSOR represents and warrants throughout the Term that the Declaration does not conflict with any terms of this Agreement. Further, in the event that any provision of the Declaration, whether in place at the Effective Date or through any amendment of the Declaration adopted following the Effective Date, prohibits LESSEE's permitted use under this Agreement or interferes with LESSEE's operations at the Premises in LESSEE's sole discretion, LESSEE shall have the right to immediately terminate this Agreement by providing written notice to LESSOR. 15 39. ATTORNEY'S FEES. In the event that either Party institutes an action at law, in equity or in a bankruptcy proceeding to enforce any obligation under this Agreement, including, but not limited to, the collection of amounts due pursuant to this Agreement, the non -prevailing Party in such action shall pay the prevailing Party all actual expenses incurred in connection therewith, including reasonable attorneys' fees through all appeals. [SIGNATURES APPEAR ON THE FOLLOWING PAGE.] 16 IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective seals the day and year first above written. SS M(!- (kil r L Print Name WITNESS MA &76al 5AAJ0'CYL S Print Name WITNE�s1� Sc��wah Print Name WITNESS Print Name LESSOR: The Sands on the Ocean, A Condominium, Section I Association, Inc., a Florida not -for -profit corporation By. Name: Title; Date: LESSEE: Verizon Wireless Personal Communications LP d/b/a Verizon Wireless By: Name: Apama Khurj e , ar Title: Area Vice Pres' entNetwo_rk Date: 5*//S7 17 EXIIIBIT "A" LEGAL DESCRIPTION OF PROPERTY Common elements of THE SANDS ON THE OCEAN, A CONDOMINIUM, SECTION 1, as described in that certain Declaration of Condominium of THE SANDS ON THE OCEAN, A CONDOMINIUM, SECTION I, dated June 29, 1983, recorded June 29, 1983, in Official Records Book 404, Page 1995, in the Public Records of St. Lucie County, Florida, as subsequently amended, (the "Declaration") and more particularly described as follows: Those portions of Government Lets 2 and 3, in Section 25, Township 34 South, Range 40 Gast. lying East of State Rvad A - I -A, together with Tract'5' and a portion of Tract'R' of "CORAL COVE BEACH SUBDIVISION" according to the Plat thereof as recorded in Plat Rook 11, Pages 30 A and t), of the Public Retards of St. Lucie County, Florida, all the above being, des( -rifted as follows: C.O%IMENCINt at the Southwest corner of said Tract 'R'; thence Northerly along the Easterly Right -of -Way line of State Road A-f-A, said Right-of-way line being a curve concave to the last and having as its elements a radius of 2914.93 feet, a central ankle of 00('7.511811,for an arc distance of 20.72 feet to the POINT OF BEGINNING; thence continue. Northerly alone; said Right -of -Way line and along the last described curve through a central angle of 0311 l'07" for an arc distance of 156.49 feet; thence continue Northerly along said Right -of -Way line tangent to said curve for a distance of 28.34 feet to the Northwest corner of said Tract IS'; thence continue Northerly along said Right -of -Way line for a distance of 141.93 feet to a line that is 339.00 feet North of and parallel with the South line of said Tract'W; thence Easterly along said parallel line for a distance of 620.56 feet to the Mean High Alater line of the Atlantic Ocean; thence Southerly along said dean High Water line to its int€.rsection with a line that is 20J)0 feet North of and parallel with the South tine of said Tract 'R'; thence Westerly along said parallel line for a distance of 615.72 feet to the POINT OF BEGINNING. Said lands containing 4.54 acres more or less. 18 EXHIBIT "B" DEPICTION OF ROOFTOP SPACE, FLOOR SPACE ANTENNA SPACE AND CABLING SPACE [See attached three (3) pages.] wl rar E m 'V 0 N 00000000000000 asaa a3a Na.;3Hu a$ g9$ NMlaFo', °? g g?:aa ^m itig?Ps �%i?Y ep! a:g 4 UTH jig, jq j—a g €3.-y�, s• MAI a `€jail! siRiPg.5,.iE i :g hisfr l%a jA i��g$y. E ^A 'saag=`ong l d'gsk:c9rC- a¢ # g 3€ 3rBi $pa l�Z f� �l jj 5eg IN-Ism Hull; i»Pgggisli-bij$$8p: si iaie83? ag �'�EB � oj0®®3 N N