HomeMy WebLinkAboutAGREEMENT TO LEASE REAL ESTATEF
SCANNED
BY
S4, Lucie County
AGREEMENT TO LEASE REAL ESTATE
THIS AGREEMENT TO LEASE REAL ESTATE (this "Agreement") is made as of
September 27, 1996, between Magnum Northeast Properties, Ltd., c/o Osiris
(hereinafter "Lessor") and AMERICAN TOWER SYSTEMS, INC., a Delaware
3tion, with an address of 6400 N. Congress Avenue, Suite 1750, Boca Raton, Florida
(hereinafter "Lessee') (collectively, the "Parties").
WHEREAS, Lessor is the owner in fee simple of certain real property in Section 6,
To ship 36 South, Range 40 East, located in St. Lucie County, more fully described in the
desc iption attached hereto as Exhibit A and incorporated herein by reference (the
"Pro erty"); and
WHEREAS, Lessee desires to lease the Property from Lessor; and Lessor desires
to le 'se the Property to Lessee on the terms and conditions set forth herein;
i
NOW THEREFORE, in consideration of the mutual promises contained herein and
...
n forT~o } er� goodj+ and -Valuable consideration, receipt and sufficiency "of �'whiich' is hereby` ' I%
ackn wledged, and in consideration of the terms and conditions set forth herein and with
the intention of being legally bound hereby, Lessee and Lessor agree as follows: `
1. LEASE: Owner leases to Lessee portions of the Property consisting of
an al
�a which is described in Exhibit A, together with appurtenant Lease easements for
in
gre s and egress, 24 hour per day, seven days per week, on foot or by motor vehicle
(incl ing by truck). The Lessee shall have the right to install. and maintain transmission
and I tility wires and cables, conduits and pipes on the Property including over, under or
along, a 20 foot right of way extending from the nearest public right-of-way for use by the
publi utility, at no cost to Lessor.
(a) Commencement and Term of Lease: This Agreement shall
com ence upon the date upon which all zoning and permits necessary for the Lessee to
�
build p to a 300' (three hundred) tower (the "Tower") on the Property have been secured
and '� nstruction started ( the "Commencement Date"), and shall expire on the twenty-fifth
(25th anniversary of the Commencement Date. If Lessee is unable to secure all required
zonin and permits for the Tower within 180 days of the date upon which this Agreement is
exec ed, either party may terminate this Agreement at its option with no further liability to
the of er party.
(b) Renewal: This Agreement shall renew for up to three (3)
;ive five (5) year periods at a lease rate equal to the rate being paid at the
ion of the prior term, plus inclusion of the annual adjustment described in paragraph
(2) below, unless written notice from Lessee is provided to Lessor ninety (90) days
to the termination of the then current term in effect.
(c) Lease Payment: Commencing upon the Commencement Date,
Lessee shall pay Lessor lease payments in semi-annual payments as follows:
AMper year annually, paid in semi annual installments equal to $�. This
annual rental rate will be adjusted upwards every five years by the greater of the
CPI AWo. The CPI adjustment shall be calculated as follows:
Hypothetical CPI at the beginning of the five year period = W
Hypothetical CPI at the, end of the five years period = 4M
Indicated increase adjustment by the CPI = W/o
Ending CPI minus beginning CPI is divided by the beginning CPI, or
-M =MB or W
lAs the greater is f Wo, the lease rate would be adjusted upward by 'ft annually for
e next 5 year period.
Additionally, the Lessor reserves the right to occupy a space on the Tower for their
se.
2 LESSEE'S DEFAULT: In the event of default by Lessee hereunder,:-- -=
M: -,gin_
nclu'ding'without"limitation nonpayment jof any lease payment, which nonpayment remains
uncured for thirty (30) Days from the date on which Lessor gives Lessee written notice that
said payment was due, Lessor may declare Lessee in default and may seek to evict said
Lessee. In the event of any litigation over the performance of this Agreement by either
party, the prevailing party shall collect its reasonable costs and legal fees from the party
which did not prevail.
3. LESSOR'S DEFAULT: In the event of default by Lessor hereunder,
Lessee may, at its option, elect to enforce the terms hereof in any court of competent
jurisdiction or demand and be entitled to any and. all appropriate damages in connection
with such default.
4: TITLE: Lessor represents and warrants to Lessee that as of the signing of this,
Agreement it holds unencumbered and marketable title to the Property and will provide
satisfactory evidence thereof on or before the Commencement Date. If Lessor is unable to
demonstrate on or before the Commencement Date that it has an unencumbered and
marketable title to the Property, Lessor shall have thirty (30) days to remedy the title
defects. In the event that the title defects cannot be remedied, Lessee shall have the right
to cure and remedy the defect(s) and Lessor shall be liable for all damages and costs
incurred by Lessee arising from the breach of the warranty concerning title.
5. POSSESSION: Subject to paragraph 4 above, Lessor shall deliver and
Lessee shall accept possession of the Property on the Commencement Date. Lessor
I
i
repr' sents that as of the Commencement Date, no party will possess any leasehold rights
in or to the Property. Lessor shall have the right to continue to occupy the Property as well
as ' ssee, and shall carry on such activities as are consistent with law and which do not
inte ere with Lessee's right to use the Property for a transmission facility as detailed in
par raph 8 (a) below.
6. TAXES: Lessor agrees to pay the real property taxes levied and
ass ssed against the Property for the year 1996, on time and prior to said taxes becoming
deli quent. Thereafter, during the lease term and any renewals, and during the year in
whi said lease shall be operative as of January 1st of said year, Lessee shall pay all real
esta a taxes levied and assessed against that part of the property set forth on Exhibit A.
Les ee shall promptly reimburse Lessor for said real property taxes within thirty days of
Les or submitting a reasonable estimate based upon assessment information obtained
fron the St. Lucie County Property Appraiser's Office and millage requirements of the
cou ty, together with a copy of a paid tax bill covering the real property of which the
pro 'erty forth in Exhibit A is a part. The. Lessee would reserve the right to challenge the
Pro erty Appraiser's assessment of the Property if such assessment increases over the
cum ntly assessed value.
�
7. BROKER/AGENT PARTICIPATION: A Broker's fee is part of this
tranaction and will be paid by the Lessor. This Broker's fee involves.Merritt Realty ( Ed
Mer' itt, Broker) and the Lessor. The Lessee has a contractual agreement with Chapman
"arid' Chapman Associafid'b is agr`eeinents "is' a "consultant "s"ervrces agreement m`�►irhich ""`'
Her ert L. Chapman is a subcontractor for the Lessee.
0
S. GENERAL PROVISIONS: The following general provisions shall apply to
the�Lsehold granted by this Agreement:
(a) Purpose: Lessee shall have the exclusive use of the Property for
purposes of operating a communications facility, limited to the erection of a transmission
to r, satellite downlink antennas, transmitter and receiver buildings, other receive and
tran mit antennas, and other secondary communications facilities. Lessor will grant
app'oval to the construction plans of Lessee prior to the Commencement Date, which
app'oval shall not be unreasonably withheld. Lessee's operation of its facility shall at all
time be consistent with law, ordinance and administration regulation. Lessor's initialing of
Exh bit A shall signify Lessor's. approval of the location of the Leased Premises and
app' rtenant Lease easements Lessor also grants to Lessee rights to (i) install electric lines
fron i a main feed of off -site power source to the equipment and telephone lines from a main
or o -site telephone entry point to the equipment, and (ii) erect, construct or make Property
imp ovements, alterations or additions ("Lessee's Changes") appropriate for Lessee's use.
Les ee's Changes may include, if permitted by Law, fencing and landscaping the Leased
Pre ises. All Lessee's Changes shall remain Lessee's personal property, save for
cul J
rts, cattleguards, fencing, and permanently installed drainage structures, which will
rerrin after lease expiration.
this
(b) Assignment and Sublease: Lessee may freely assign its rights under
ement or sublet the Property or facilities on the Property subject to Lessor's written
, which shall not be unreasonably withheld.
(c) Condition of Premises: Lessee agrees that no representation as
to cndition or repair of the Property, and no promise to alter, repair or improve the
Pro ierty has been made by Lessor. Lessee shall deliver the Property to Lessor in good
repa ir at the expiration of this Agreement, and shall remove all fixtures which it has placed
on t e Property prior to the expiration of the lease term, yielding up and delivering the
Pror erty in like condition as when taken, save for culverts, cattleguards, fencing, and
perr anently installed drainage structures.
(d) Right To Enter Property: Lessor shall have full right to inspect or
access to the leasehold improvements made by Lessee in or to the Property at all
given prior notice to the Lessee.
(e) Alterations: Lessee may freely make alterations, decorations,
add ions or improvements in or to the Property, provided that said alterations, additions,
dec4 irations or improvements are in compliance with federal, state and , local laws,
regL'lations and ordinances. Any mechanic's lien filed against the Property for work
clair ied to have been done for or materials claimed to have been furnished to Lessee shall
be c ischarged by Lessee within ten (10) days after filing. Lessor shall have the right, but
not he -obligation,- to -pay-or, discharge any mechanic's lien. If Lessor -should--elect, 10
exercise this right, Lessee shall pay Lessor the amount so expended, within 10 days of
notice by Lessor of said obligation. Lessor will allow Lessee to make reasonably
appropriate alterations to the Property in order to accomplish Lessee's Changes, in
acc rdance with plans and specifications ("Plans") to be submitted to Lessor and reviewed
for d pproval not later than five (5) days from submission. After Lessor's written acceptance
of a y Plans submitted by Lessee, the Plans shall be determined to be accepted to Lessor,
and shall incorporated in the Lease as Exhibit "B".
(f) Lessor's Nonliability: Lessor shall not be responsible or liable to
Les iee for any loss or damage that may be occasioned by or through the acts of omissions
of ersons occupying adjoining property. In addition, Lessor shall not be liable for any
da sage or injury to any person or property which occurs on the Property due to Lessee's
acti' ns or omissions. Lessee shall maintain commercial liability insurance on the Property
of a type and level consistent with good communications industry practice, but in no event
les than $1,000,000 and Lessor shall be named as an additional insured on said policy at
no i ost to Lessor.
(g) Eminent Domain: If, during the term of this Agreement,
pro eedings shall be instituted under the power of eminent domain which shall result in an
evidtion, total or partial, of Lessee, at the time the trial of such proceedings shall
commence, this Agreement shall be voidable at the option of Lessee and the terms above
shad cease and terminate if Lessee elects to void this Agreement. If the Lessee continues
in
ZF
ssession, it shall be as a Lessee from month to month and for no longer terms,
ing in this instrument to the contrary notwithstanding.
(h) Remedies Not Exclusive: Each of the rights provided in this
shall be cumulative.
(i) Right To Mortgage: Lessor shall have the right to subordinate this
Agr ement to any mortgage hereafter placed on the Property.
(j) Quiet Enjoyment: Upon Lessee paying the rent and performing all
of
Jly
eother provisions of this Agreement, Lessor agrees that Lessee shall peacefully and
qui have, hold and enjoy the Property during the term of this Agreement.
Dur g the term of this Agreement, the Lessee will provide the Lessor a list of the tenants
and an inventory of their equipment which is mounted on the Tower.
9. MISCELLANEOUS: The following additional terms and conditions apply to
the erformance of this Agreement by the parties:
(a) Lessor agrees that Lessee's ability to use the Leased Premises is
con ingent upon its suitability for Lessee's intended use from a technical engineering basis
and Lessee's ability to obtain any and all governmental leases, permits, and approvals
reqt iired or deemed necessary or appropriate by Lessee for its use of' the- Leased Premises
(cal ed "Governmental Approvals"). Lessor agrees to cooperate with Lessee, and at
Les ee's expense join in any applications for Governmental Approvals. Lessor specifically
au ' orizes Lessee to prepare, execute and file all necessary or appropriate applications to
obt in Governmental Approvals for its use under this Lease.
Les' ee shall have a period of 180 days, from the execution date of this Agreement, unless
ext nded in writing by Lessor, to obtain all required governmental approvals and licenses.
Fail�� re of Lessee to obtain said approvals, licenses or permits shall render this Agreement
null ,and void.
(b) Lessor also agrees that Lessee's ability to use the Leased Premises is
lent upon the completion of contract arrangements with its sublicensee(s) for a
of time not to exceed 180 days.
(c) Waiver of Default: Either party may waive or remedy any default in
an manner without waiving such default remedied and without waiving any other prior or
sub equent default; and either party may waive or delay the exercise of any right or remedy
un r this Agreement without waiving that right or remedy or any other right or remedy
her under. No waiver of any of the terms, provisions or conditions hereof shall be effective
ag- nst either party unless the same is in writing and signed by the waiving party.
to t
the
(d) Binding on Assigns: This Agreement shall be binding upon, and shall inure
benefit of the respective heirs, executors, administrators, successors and assigns of
(e) Survival of Covenants and Warranties: Each of the agreements,
nts and warranties on the part of the Parties to this Agreement shall be deemed and
ed to be on a continuing basis and shall survive the execution and deliver of this
lent.
(f I Notices: All notices, demands or requests required or permitted
and Ir this Agreement to be given by or to either of the Parties (i) shall be in writing and (ii)
unle s and until otherwise specified in a written notice by the respective parties or any of
then;,
i shall be sent to the parties at their following respective addresses:
or
to
rece
so r
first
If to the Lessor: Magnum Environmental Services
Atten: Osiris Ramos
5690 West Midway Road
Ft. Pierce, Florida 34981
Telephone: 561-468-9328
If to the Lessee: American Tower. Systems, Inc.
6400 N. Congress Avenue
Suite 1750
Boca Raton, FL 33487
Atten: James S. Eisenstein
Telephone: 407-998-2280
Fax 407-998-2278
uch other address as either party from time to time shall designate by written notice
other. Each such notice, demand or request shall be deemed to have been properly
I for all purposes if personally delivered or sent by Registered or Certified Mail, return
t requested, postage prepaid, to its addressee at its address as set forth herein
or by recognized overnight courier service. Each such notice, demand or request
iled by either party shall be deemed to have been received by its addressee on the
isiness day after the day of mailing.
the
I
(g) Integration; Amendment; Modification: This Agreement represents
itire agreement of the Parties as to the subject, and there exists. no other oral or
i agreement or understanding which is not a part of this Agreement or which shall
no force or effect. This Agreement shall not be amended or modified except by
i instrument executed by the Parties. j
(h) Separability: Each section, subsection and lesser section of this
Agr 'ement constitutes a separate and distinct undertaking, covenant or provision hereof.
In a event that any provision of this Agreement shall be determined by a court of
comevent jurisdiction to be unlawful, such provision shall be deemed severed from this
Agr �ment, but every other provision of this Agreement shall remain in full force and effect.
(i) Law of. Forum; Venue: This Agreement shall be construed in
accodance with and governed by the laws of the State of Florida. The Parties agree that
this agreement was executed in St. Lucie County, Florida and the Parties contemplate that
its p rformance is to occur in St. Lucie County, Florida. Thus, the Parties agree that the
sole enues for all actions brought pursuant to this Agreement shall be the courts of law or
equi of St. Lucie County, Florida or in the courts of the United States of America located
in FtJPierce, Florida.
Titles; Pronouns: Titles at the beginning of paragraphs,
subp; ragraphs, sections and subsections of this Agreement are placed there for the
conv nience of the reader, and are of no force or effect. To the extent that said titles are
exprel sed or implied contrary to any provision in this Agreement, the terms of the provision
and of the title governs the interpretation of this Agreement. Pronouns, regardless of
gend r, shall be interpreted. as if they were of the gender of the noun to which they refer.
(k) Interpretation: Neither this Agreement nor any provision contained
here- shall be interpreted for or against either Party solely because that Party or that
Party legal representative crafted the provision.
(1) Counterparts: This Agreement may be executed in one or more
each of which shall be deemed an original and all of which shall constitute the
same
IN WITNESS WHEREOF, the Parties hereto, intending to be' legally bound, have
ed and delivered this Agreement on the day and ear first a written.
By:-Z-
Date: ' / 2 , 1996
i
AMERICAN TOWER SYSTEMS, INC.
By:
James S. Eisenstein
hief Operating Officer
Date: , 1996
i