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HomeMy WebLinkAboutLEASE AGREEMENTq,uo Lessee's site Ocean Harbour site No. 69024 JI.HIVIVtL BY BUILDING AND ROOFTOP LEASE AGREEMENT St. Lucie Count This Agreement, made this AV day of MQ.Lk 2002, between OCEAN HARBOUR CONDOMINIUM ASSOCIATION, INC., a Flblida non profit corporation, with its principal offices located at 1105 12a' Street, Vero Beach, Florida 32960, Federal Tax ID # 59- 2243323 hereinafter designated LESSOR and VERIZON WIRELESS PERSONAL COMMUNICATIONS LP d/b/a Verizon Wireless, a Delaware limited partnership, with its principal offices at 180 Washington Valley Road, Bedminster, New Jersey 07921, hereinafter designated LESSEE. The LESSOR and LESSEE are at times collectively referred to hereinafter as the "Parties" or individually as the "Party'. WITNESSETH In consideration of the mutual covenants contained herein and intending to be legally bound hereby, the Parties hereto agree as follows: LEASE AGREEMENT 1. PREMISES. LESSOR hereby leases to LESSEE (i) approximately Six Hundred Twenty-five (625) square feet on the roof of that certain building ("Rooftop Space") located on that certain property with an address at 5167 AIA Highway, Fort Pierce, Florida (the entirety of LESSOR's property is referred to hereinafter as the "Property"), (ii) together with such additional area on the roof of said building for the location of LESSEE's antennae ("Antenna Space") and for the installation and maintenance of wires, cables, conduits and pipes running from the Rooftop Space to the Antenna Space ("Cabling Space"), and (iii) together with the non- exclusive right for ingress and egress during normal business hours (defined as Monday - Saturday, 7:00a m. to 6:00p.m.), and in the event of an emergency, seven (7) days a week, twenty-four (24) hours a day for the purpose of installation and maintenance of the demised premises. The Rooftop Space, Antenna Space, and Cabling Space are collectively referred to hereinafter as the "Premises". The Premises are more particularly depicted on the rooftop site plan attached hereto as Exhibit "A' and made a part hereof. The rooftop site plan attached as Exhibit "A', shall be subject to review and approval by LESSOR, which approval will not be unreasonably withheld, conditioned or delayed. LESSOR shall give such approval or provide LESSEE with its request for changes within ten (10) days of receipt of LESSEE's plans. If LESSOR does not provide such approval or request for changes within ten (10) days of receipt of a request therefor, Lessor shall be deemed to have approved same. 1 6. USE: GOVERNMENTAL APPROVALS. LESSEE shall use the Premises for the purpose of constructing, maintaining and operating a communications facility and uses incidental thereto. LESSEE will maintain the leased portion of the roof in a weather tight condition. All improvements shall be at LESSEE's expense and the installation of all improvements shall be at the discretion and option of the LESSEE. LESSEE shall have the right to replace and repair its equipment or any portion thereof, whether the equipment is specified or not on any exhibit attached hereto, during the term of this Agreement. If LESSEE wishes to add or otherwise modify its equipment or any portion thereof, whether the equipment is specified or not on any exhibit attached hereto, during the term of this Agreement, Lessee shall submit copies of the plans and specifications therefor to LESSOR for prior approval, which approval will not be unreasonably withheld, conditioned or delayed. LESSOR shall give such approval or provide LESSEE with its request for changes within ten (10) days of receipt of LESSEE's plans. If LESSOR does not provide such approval or request for changes within ten (10) days of receipt of a request therefor, Lessor shall be 04/09/2 2 deemed to have approved such plans and specifications. LESSEE will maintain the Premises in good condition, reasonable wear and tear excepted. LESSOR will maintain the Property, excluding the Premises, in good condition, reasonable wear and tear excepted. 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. In the event that any of such applications for such Governmental Approvals should be finally rejected or LESSEE determines that such Governmental Approvals may not be obtained in a timely manner or any Governmental Approval issued to LESSEE is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority or that the LESSEE determines that the site is no longer technically compatible for its use or that LESSEE, in its sole discretion, will be unable to use the Premises for its intended purposes, LESSEE shall have the right to terminate this Agreement. Notice of the LESSEFs 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 the LESSEE. All rentals paid to said temvnation date shall be retained by the LESSOR. Upon such termination, this Agreement shall become null and void and the Parties shall have no further obligations including the payment of money, to each other. 7. INDEMNIFICATION. 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 use and occupancy of the Premises or the Property by the Party, its servants or agents, excepting, however, such claims or damages as may be due to or caused by the acts or omissions of the other Party, or its servants or agents. 8. INSURANCE. The Parties hereby waive any and all rights of action for negligence against the other which may hereafter arise on account of damage to the premises or to 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. LESSOR and LESSEE each agree that at its own cost and expense, each will maintain comprehensive general liability and property liability insurance with liability limits of not less than $2,000,000 combined single limit for injury to or death of one or more persons in any one occurrence and for damage or destruction to property in any one occurrence. Each Party shall provide the other with a certificate of insurance evidencing the insurance coverage required by this paragraph within thirty (30) days of the Commencement Date. Provided LESSEE maintains a net worth of at least 25 million dollars, LESSOR agrees that LESSEE may self insure against any loss or damage which could be covered by a comprehensive general public liability insurance policy. 9. INTENTIONALLY OMITTED 04109/2 10. INTERFERENCE. LESSEE agrees to have installed radio equipment of the type and frequency which will not cause measurable interference to the equipment existing as of the date this Agreement is executed by the Parties of the LESSOR or other lessees of the Property . In the event LESSEE's equipment causes such interference, and after LESSOR has notified LESSEE of such interference, LESSEE will take all steps necessary to correct and eliminate the interference. 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 radio equipment that is of the type and frequency which will not cause measurable interference the existing equipment of the LESSEE. The Parties acknowledge that there will not be an adequate remedy at law for non- compliance with the provisions of this paragraph and therefore, either Party shall have the right to specifically enforce the provisions of this paragraph in a court of competent jurisdiction. 11. REMOVAL UPON TERMINATION. LESSEE, upon termination of the Agreement, shall, within ninety (90) days, remove its equipment, fixtures and all personal property and restore the Premises to its original condition, reasonable wear and tear excepted. LESSOR agrees and acknowledges that all of the equipment, fixtures and personal property of the LESSEE shall remain the personal property of the LESSEE and the LESSEE shall have the right to remove the same, whether or not said items are considered fixtures and attachments to real property under applicable law. 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 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. 12. INTENTIONALLY OMITTED 13. RIGHTS UPON SALE. Should the LESSOR at any time during the term of this Agreement, decide to sell all or any part of the Property to a purchaser other than LESSEE, such sale shall be under and subject to this Agreement and LESSEE's rights hereunder. 14. QUIET ENJOYMENT. LESSOR covenants that LESSEE, on paying the rent and performing covenants shall peaceably and quietly have, hold and enjoy the Premises. 15. TITLE. LESSOR covenants that LESSOR operates the Property as the lawful representative of the individual unit owners who are the fee simple owners of the Property, pursuant to §718.111, Florida Statutes and that LESSOR has full right and authority to execute and perform this Agreement. LESSOR further covenants that there are no covenants, easements, restrictions or agreements binding on LESSOR or the Property which prevent the use of the Premises by the LESSEE as set forth above. 16. INTEGRATION. It is agreed and understood that this Agreement contains all agreements, promises and understandings between the LESSOR and LESSEE and that no verbal or 04/0912 Cl oral agreements, promises or understandings shall be binding upon either the 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. In the event any provision of the Agreement is found to be invalid or unenforceable, such finding shall not effect 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, either in law or in equity. 17. GOVERNING LAW: VENUE. This Agreement and the performance thereof shall be governed, interpreted, construed and regulated by the laws of the State of Florida, and venue for any disputes arising out of the performance or interpretation of this Agreement, shall be St. Lucie County, Florida. . 18. 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 or delayed 19. 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 OCEAN HARBOUR CONDOMINIUM ASSOCIATION, INC. 1105 le Street Vero Beach, Florida 32960 Attn: Craig Merrill 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 mailing or delivering the same to a commercial courier, as permitted above. 04109/2 20. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal representative, successors and assigns of the Parties hereto. 21. SUBORDINATION AND NON -DISTURBANCE. At LESSOR's option, this Agreement shall be subordinate to any mortgage or other security interest by LESSOR which from time to time may encumber all or part of the Property or right-of-way, provided, however, every such mortgage or other security interest shall recognize the validity of this Agreement in the event of a foreclosure of LESSOR's interest and also LESSEFs right to remain in occupancy of and have access to the Premises as long as LESSEE is not in default of this Agreement. LESSEE shall execute whatever instruments may reasonably be required to evidence this subordination clause. In the event the Property is encumbered by a mortgage or other security interest, the LESSOR immediately after this Agreement is executed, will obtain and furnish to LESSEE, a non - disturbance agreement for each such mortgage or other security interest in recordable form. In the event the LESSOR defaults in the payment and/or other performance of any mortgage or other security interest encumbering the Property, LESSEE, may, at its sole option and without obligation, cure or correct LESSOR's default and upon doing so, LESSEE shall be subrogated to any and all rights, titles, liens and equities of the holders of such mortgage or security interest and the LESSEE shall be entitled to deduct and setoff against all rents that may otherwise become due under this Agreement the sums paid by LESSEE to cure or correct such defaults. Provided however that the provisions of this paragraph 21 shall not apply to mortgages or other security interests which encumber the individual units and appurtenances thereto. 22. RECORDING. LESSOR agrees to execute a Memorandum of this Lease 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 term or rent payments. 23. DEFAULT. In the event there is a default by the LESSEE with respect to any of the provisions of this Agreement or its obligations under it, including the payment of rent, the LESSOR shall give LESSEE written notice of such default. After receipt of such written notice, the LESSEE shall have fifteen (15) days in which to cure any monetary default and thirty (30) days in which to cure any non -monetary default, provided the 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 the LESSEE commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. The LESSOR may not maintain any action or effect any remedies for default against the LESSEE unless and until the LESSEE has failed to cure the same within the time periods provided in this paragraph. 24. ENVIRONMENTAL. a. LESSOR will be responsible for all obligations of compliance with any and all environmental and industrial hygiene laws, including 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 conditions or 04/09/2 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 Property, unless such conditions or concerns are caused by the activities of the LESSEE. b. LESSOR shall hold LESSEE harmless and indemnify the 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 compliance results from conditions caused by the LESSEE; and b) any environmental or industrial hygiene conditions arising out of or in any way related to the condition of the Property or activities conducted thereon, unless such environmental conditions are caused by the LESSEE. 25. CASUALTY. In the event of damage by fire or other casualty to the 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 Lease upon fifteen (15) days written notice to LESSOR. Any such notice of termination shall cause this Lease 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 Lease and the parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under this Lease. Notwithstanding the foregoing, all rental shall abate during the period of such fire or other casualty. 26. CONDEMNATION. In the event of any condemnation of the Property, LESSEE may terminate this Lease upon fifteen (15) days written notice to LESSOR if such condemnation may reasonably be expected to disrupt LESSEE's operations at the Premises for more than forty- five (45) days. LESSEE may on its own behalf make a claim in any condemnation proceeding involving the Premises for losses related to the antennas, equipment, its relocation costs and its damages and losses (but not for the loss of its leasehold interest). Any such notice of termination shall cause this Lease 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 Lease and the parties shall make an appropriate adjustment as of such termination date with respect to payments due to the other under this Lease. 27. SUBMISSION OF LEASE. The submission of this Lease for examination does not constitute an offer to lease the Premises and this Lease becomes effective only upon the full execution of this Lease by the Parties. If any provision herein is invalid, it shall be considered 04/09/2 deleted from this Lease and shall not invalidate the remaining provisions of this Lease. Each of the Parties hereto warrants to the other that the person or persons executing this Lease on behalf of such Party has the full right, power and authority to enter into and execute this Lease on such Party's behalf and that no consent from any other person or entity is necessary as a condition precedent to the legal effect of this Lease. 28. APPLICABLE LAWS. LESSEE shall use the Premises as may be required or as permitted by applicable laws, rules and regulations. LESSOR agrees to keep the Property in conformance with all applicable, laws, rules and regulations and agrees to reasonably cooperate with the LESSEE regarding any compliance required by the LESSEE in respect to its use of the Premises. 29. 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. 30. 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. 31. 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 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. 32. CAPITAL CONTRIBUTION. Within thirty (30) days after execution of this Agreement by the Parties, LESSEE shall pay LESSOR a one-time capital contribution in the amount of Two Thousand Dollars ($2,000.00) 33. ATTORNEY FEES AND COSTS. In the event either Party institutes any legal action or proceeding to interpret or enforce the terms and conditions of this Agreement, or any action for damages by reason of any alleged breach of the provisions hereof, then the prevailing party in any such action or proceeding shall be entitled to receive reasonable attorney's fees and costs of such action, including but not limited to attorney's fees and costs of any bankruptcy or appellate proceedings associated with such action. [SIGNATURES ON NEXT PAGE] 147- :10A IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective seals the day and year first above written. TNESS n ame:Tu�,c �,42(tttT URAL WITNESS Name: Ul -er. 1xr�� FELL #576766 J2 oarovrz LESSOR - Ocean Harbour Condominium Association, Inc. By: Name: GfiPA4D /�ie�s�A�i Title: QlAlge.7—,.z A> Z(LXZ LESSEE: Verizon Wireless Personal Communications LP d/b/a Verizon Wireless BY: Howard H. Bower Area Vice President - Network South Area IaR4. No: 4 ROPOSED COAxAL CAOtE e- ROUTE (WPRXMATE. TO RE -r, Ss 7 FIEID OERRxNEO) uOUN1ED PROPOSED MPYENT FRAYS ON PARAPET m P. PROPOSED RADIO EWIPYENT (SEE YWNONG DETAIL W CADD M (SEE ST-VIRAL ENEETS) ExSMG NEAm COAX GAGUB I o I4 1 0 0 O C O' In e o e O O' I I o d --- —moo ----, 0 0 0 OI ExSTOW „ a o O O ExSTuic NE%m ANTENNAS I iNEmO ROOF oEa El I'S I� b I D'-O• I h S /_ A= I r-r PROPOSED R CABLE SUPPORT (TrP.) .) SEE OETA0. PR®OSED BETA =TM ANTENNAS (17n ON $NT. A S ' PAINT ANTENNAS TO MAT E'"HG BUA K. PROPOSED ROUTE POR mCO AND ELEC,INC SERVICE MOPOSED NA 01- NS (SEE ANTENNA ROOFTOP MOUNT DETMI ON W. 10) m AN M TOO USING p� µTEp TO "SnNO I DING. SERVICE ROOMS LOCATED ON evR._iLORrv� (n =ATE SEE ANT A ROOFN YOWT DETAIL ON 9T. 10) ®ROOF PLAN A• scut ,pG•.r-o• PARAPET FALL EBS,ING NEXm ANTENNAS