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HomeMy WebLinkAboutAMENDMENT TO AGREEMENT�nM! - 4 2016 `�.. . Public Works Lessee Site ID/Number: Spain Tower, #62713 SCANNED St. Lucie county, pL BY St. Lucie County SECOND AMENDMENT TO LEASE AGREEMENT This Second Amendment to Lease Agreement ("Second Amendment") is made this day of 201hhe "Effective Date"), by and between MARY JANE SPAIN on the behalf of and as Trustee of the Frank K. Spain Marital Trust ("Owner"), and VERIZON WIRELESS PERSONAL COMMUNICATIONS LP d/b/a Verizon Wireless, a Delaware limited partnership ("Lessee"). Owner and Lessee are at times collectively referred to hereinafter as the "Parties" or individually as the "Party." WHEREAS, Frank Spain ("Prior Owner') and PrimeCo Personal Communications, Limited Partnership, a Delaware limited partnership (n/k/a Lessee) entered into that certain Lease Agreement dated August 24, 1998 (hereinafter the "Base Lease"), as amended by that certain First Amendment to Lease Agreement dated August 2, 2013, by and between Owner and Lessee (hereinafter the "First Amendment") pursuant to which Lessee leases certain premises on the real property located at 6189 N. U.S. 1, City of Indrio, County of St. Lucie Florida and as more particularly described in the Base Lease (the "Leased Property"); and WHEREAS, the Frank K. Spain Marital Trust (the "Trust'), is successor in interest to Prior Owner and is the current owner of the Leased Property; and WHEREAS, Lessee has advised Owner that it desires to replace six (6) of its existing antennae with (6) new antennae and add six (6) new coax transmission lines, all within its existing lease space; and WHEREAS, Owner and Lessee desire to amend the Base Lease as amended by the First Amendment as provided herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree to be legally bound to this Second Amendment as follows: I. The recitals set forth above are incorporated herein as though set forth in full hereafter. Capitalized terms not defined in this Second Amendment shall have the same meaning as such terms have in the Base Lease as amended by the First Amendment. 2. Owner agrees that Lessee shall be permitted to: (a) replace six (6) of its existing antennae with (6) new antennae, for a total of nine (9) antennae, (b) install six (6) new coax transmission lines, for a total of eighteen (18) coax transmission lines and (c) install such wires, cables, conduits and pipes as necessary to connect the aforementioned equipment to Lessee's existing installations (all of the foregoing are collectively, the "New Equipment"). Lessee's antennae on the tower will be located at approximately two hundred twenty six feet (226') above ground level. Portions of the New Equipment shall be installed in the locations depicted on Exhibit "B-2" attached hereto and incorporated herein by reference. Lessee Site ID/Number: Spain Tower, #62713 3. Paragraph 3 of the Base Lease is hereby deleted in its entirety and replaced with the following: USE OF THE LEASED PROPERTY. Lessee shall use the Leased Property 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. Nothing herein shall be construed to in any way limit Owner's right to enter the Leased Property, provided, however, that in the event Owner or any of its employees, agents or representatives access the Leased Property, they shall not be permitted to make alterations or repairs to, perform maintenance on, or otherwise touch Lessee's equipment. 4. Exhibit "B" to the Base Lease is hereby deleted in its entirety and replaced by Exhibit "B-2" attached to this Second Amendment. From and after the Effective Date, any references to Exhibit "B" to the Base Lease shall be deemed to refer to Exhibit "B-2" attached to this Second Amendment. 5. Paragraph 4(C) of the Base Lease is deleted in its entirety. 6. Commencing on the earlier of (a) the first day of the month following the date upon which Lessee commences installation of the New Equipment or (b) the first day of the month following the date that is sixty (60) days after the Effective Date (either, the "Rent Increase Date"). Within forty five (45) days of the Rent Increase Date, Lessee sF paay the pro -rated share of the annual rent increase to cover the period from the Rent Increase Date through the next due date for the annual rent payment. Thereafter, the annual rent shall continue to escalate in accordance with Paragraph 5 of the Base Lease, as amended by Paragraph 7 of the First Amendment. 7. Paragraph 9 of the Base Lease is hereby deleted in its entirety and replaced with the following: INDEMNIFICATION. Each Party shall indemnify and hold the other harmless against any claim made by any third party of liability or loss from personal injury or property damage to the extent 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. INSURANCE. a. Notwithstanding anything to the contrary in the Base Lease, each Party hereby waives and releases any and all rights of action against the other Party for any loss or damage to the Leased Property or to the Owner's Property, resulting from any Lessee Site ID/Number: Spain Tower, #62713 fire, or other casualty of the kind which is insurable under "Causes of Loss — Special Form" property damage insurance or covered by standard fire insurance policies with extended coverage, irrespective of whether or not, or in what amounts, the Parties actually maintain such insurance, even if any such fire or other casualty occurrence shall have been caused by the fault or negligence of the other Party, or anyone for whom such Party may be responsible. 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 Leased Property or the Owner's Property shall waive the insurer's right of subrogation against the other Party. b. Lessee will maintain at its own cost: i. Commercial General Liability insurance with limits of $5,000,000 per occurrence for bodily injury (including death) and for damage or destruction to property; ii. Commercial Auto Liability insurance on all owned, non -owned and hired automobiles with a combined single limit of not less than $2,000,000 per each accident for bodily injury and property damage; and iii. Workers Compensation insurance providing the statutory benefits and Employers Liability with a limit of $1,000,000 each accident/disease/policy limit. Lessee will include the Owner as an additional insured as its interest may appear under the Base Lease, as amended as of the date hereof, on the Commercial General Liability and Auto Liability policies. c. Owner will maintain at its own cost commercial general liability insurance with limits not less than $2,000,000 for bodily injury to or death of one or more persons in any one occurrence and $2,000,000 for damage or destruction to property in any one occurrence. Owner will include the Lessee as an additional insured as its interest may appear under the Base Lease as amended as of the date hereof. d. In addition, Owner shall obtain and keep in force during the term of the Base Lease as amended by Paragraph 6 of the First Amendment a policy or policies insuring against loss or damage to the building(s) located on Owner's Property with a commercially reasonable valuation, as the same shall exist from time to time without a coinsurance feature. Owner's policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and earthquake unless required by a lender or included in the base premium), including coverage for any additional costs resulting from debris removal and reasonable amounts of coverage for the enforcement of any ordinance or law regulating the reconstruction or replacement of any undamaged sections of the 3 Lessee Site ID/Number: Spain Tower, #62713 building located on Owner's Property required to be demolished or removed by reason of the enforcement of any building, zoning, safety or land use laws as the result of a covered loss, but not including plate glass insurance. 8. Paragraph 13 of the Base Lease is hereby deleted in its entirety and replaced with the following: ENVIRONMENTAL. a. Owner shall be responsible for all obligations of compliance with applicable federal, state and local requirements governing environmental and industrial hygiene matters including, but not limited to, those set out in any applicable statute, regulation, order, legal decision or by common law, except to the extent that any failure to comply with a requirement is caused by the activities of Lessee. b. Owner shall hold Lessee harmless, defend and indemnify Lessee from and assume all duties, responsibility and liability, at Owner's sole cost and expense, for all duties, responsibilities, and liability (for payment of penalties, sanctions, forfeitures, losses, costs, attorney's fees or damages) and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which results or is alleged to have resulted from: (i) any failure to comply with any legal requirement governing environmental or industrial hygiene matters, except to the extent that any such non-compliance is caused by Lessee; and (ii) any environmental or industrial hygiene conditions arising out of or in any way related to the condition of the Leased Property or Owner's Property or activities conducted thereon, except to the extent that such environmental conditions are caused by Lessee. c. Lessee, in conducting its activities pursuant to the Base Lease, as amended as of the date hereof, will comply with all applicable federal, state and local requirements governing environmental and industrial hygiene matters including those set out in any applicable statute, regulation, order, legal decision or by common law. d. Lessee shall hold Owner harmless and indemnify Owner from and assume all duties, responsibility and liability, at Lessee's sole cost and expense, for all duties, responsibilities, and liability (for payment of penalties, sanctions, forfeitures, losses, costs, attorney's fees or damages) and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which results from: (i) any failure by Lessee to comply with any applicable legal requirement governing environmental or industrial hygiene matters, except to the extent that any such non-compliance is caused by Owner; and (ii) any environmental or industrial hygiene conditions to the extent resulting from the activities of Lessee. Lessee shall not be responsible for any existing environmental conditions, including any contamination, which existed prior to the date of the Base Lease or for any environmental conditions or contamination to the extent not caused by Lessee or those acting on its behalf. Lessee Site ID/Number: Spain Tower, #62713 9. Paragraph 18(B) of the Base Lease as amended by the First Amendment is hereby deleted in its entirety and replaced with the following: INTERFERENCE. 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 Owner or other lessees of the Owner's Property which equipment existed on the Owner's Property prior to the date the Base Lease was fully executed. In the event any after -installed Lessee's equipment causes such interference, and after Owner has notified Lessee in writing of such interference, 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 Owner be entitled to terminate the Base Lease, as amended as of the date hereof, or relocate the equipment as long as Lessee is malting a good faith effort to remedy the interference issue. If Lessee is unable to remedy the interference issue within sixty (60) days, Lessee shall power down the interfering equipment indefinitely (except for intermittent testing at times approved by Owner) until the interference is cured. Owner agrees that Owner and/or any other tenants of the Owner's Property who currently have or in the future take possession of the Owner's 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. 10. Paragraph 19(A) of the Base Lease is hereby deleted in its entirety and replaced with the following: Lessee shall, upon expiration of the term of the Base Lease as amended by the First Amendment, or within sixty (60) days after any earlier termination of the Base Lease, remove its building(s), antenna(e), equipment, conduits, fixtures and all personal property and restore the Leased Property to its original condition, reasonable wear and tear and casualty damage excepted. Owner 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 of the Base Lease as amended by the First Amendment, whether or not said items are considered fixtures and attachments to real property under applicable laws. If such time for removal causes Lessee to remain on the Leased Property after termination of the Base Lease, Lessee 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 of the building, antenna structure, fixtures and all personal property are completed. Owner expressly waives all rights of levy, distraint or execution with respect to Lessee's properly, including without limitation any statutory or common law security interest or Lessee Site ID/Number: Spain Tower, 062713 landlord's lien for rent. If Lessee has not removed its equipment, fixtures and personal property within the foregoing sixty (60) day period, Owner agrees to send an additional written notice of such failure to Lessee, and in the event Lessee fails to remove such equipment, fixtures and personal property within ten (10) days after receipt of such additional notice, then Owner may remove such equipment, fixtures and personal property from the Leased Property and Lessee will be liable for any costs of removal and disposition of same, as well as the restoration of the Leased Property to its original condition, reasonable wear and tear and damage caused by casualty excepted. Notwithstanding anything contained in the Base Lease (as amended as of the date hereof) to the contrary, the sixty (60) day period referenced in this paragraph may be extended by mutual written agreement of the Parties. 11. Paragraph 23(Q) of the Base Lease is hereby deleted in its entirety. 12. Owner's notice address in the Base Lease is hereby replaced with the following: If by US Mail: Frank K. Spain Marital Trust c/o Microwave Service Company P.O. Box 1149 Hobe Sound FL 33475-1149 If by overnight delivery: Frank K. Spain Marital Trust c/o Microwave Service Company 409 South Beach Road Hobe Sound, FL 33455 With copy to: Martha Stegall, Esq. Mitchell, McNutt and Sams, P.A. P. 0.7120 105 S. Front Street Tupelo, MS 38804 13. The parties acknowledge that Owner is comprised of Mary Jane Spain serving as Trustee of the Trust (the "Trustee') pursuant to and in accordance with that certain Order of Summary Administration, filed of record in the office of the Clerk of the Circuit Court for Martin County, Florida, Probate Division, on May 11, 2012 in File No. 12-296CP. Owner hereby represents and warrants that the Trustee has the authority to enter into this Second Amendment on behalf of Owner, to bind Owner to the terms of this Second Amendment and to perform the obligations of Owner under the Base Lease and First Amendment, as amended hereby. Owner covenants that no consent from any other person or entity is necessary as a condition precedent to the legal effect of this Second Amendment. Owner 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 Owner in this paragraph. t Lessee Site ID/Number! Spain Tower, 462713 14. The parties hereby reaffirm their rights and obligations under the Base Lease as amended by the First Amendment, and as further amended by this Second Amendment. In the event of any inconsistencies between the Base Lease as amended by the First Amendment, and this Second Amendment, the terms of this Second Amendment shall control. The Base Lease as amended by the First Amendment and this Second Amendment contain all agreements, promises or understandings between Owner and Lessee and no verbal or oral agreements, promises or understandings shall be binding upon either Owner or Lessee in any dispute, controversy, or proceeding at law, and any addition, variation or modification to the Base Lease as amended by the First Amendment and this Second Amendment shall be void and ineffective unless made in writing and signed by the parties. In the event any provision of the Base Lease as amended by the First Amendment or this Second Amendment is found to be invalid or unenforceable, such a finding shall not affect the validity and enforceability of the remaining provisions of the Base Lease as amended by the First Amendment or this Second Amendment. [Signatures appear on the following page.] Lessee Site ID/Number: Spain Tower, #62713 IN WITNESS WHEREOF, the parties have executed this Second Amendment as of the date indicated above. WITNESSES: Name: WITNESSES: Name: fl Owner: FRANK K. SPAIN MARITAL TRUST By: atI►�� Mar Jane Wain, Trustee Lessee: VERIZON WIRELESS PERSONAL COMMUNICATIONS LP d/b/a Verizon Wireless ntName: Aparna Khurjek r Vice Presi ent-Fie] Network te: .�-� )14 i rA,R,A«e s m M owr wav rrom ru nmvu min n. awn wearRR:m aswre omm R a aao w v+eev a RRa]R0 Ao 0 M 9LwOO1wOMRRR ® Raw Y�RS YIa78 M yp/�M pV1W W L®!L Rp��M Ma Mml Ye9e:oen vlen�omyrrE,r.� a.awm,m. •.r px auLHm SPAIN TOWER 62713 vm w�c EQUIPMENT ROOM DETAIL am aaa C3 p{Yf RVC e m ewrruo ,om ea e>nsa seem ♦wr ,om w® •eeo o®m •u¢ a0rao,YmxMmWo6...uvM ev All.Mvm O M O•RL GGG�4QOP Teleco.n 9BRBHwGeless ,ssv�eee c msa.n n,me[ SPAN TOWER 62713 ae. eww ur., ,arPm�ua�m, nev sec COMPOUND DETAIL / BUILDING LAYOUT �eum C2 Lessee Site ID/Nwnber: Spain Tower, #627I3 EXHIBIT B-2 Depiction of the Leased Property [See attached three (3) pages.]