HomeMy WebLinkAboutLEASE AGREEMENT% By
SCANNED
St. Luce County
SECOND AMENDMENT TO OPTION AND LEASE AGREEMENT
THIS SECOND AMENDMENT TO OPTION AND LEASE AGREEMENT (this
"Amendment") dated as of the latter of the signature dates below (the "Effective Date") by and
between J & E HALE ENTERPRISES, INC., a Florida corporation ("Lessor") having a
mailing address of 5171 Yacht Club Road, Jacksonville, FL 32210 and CROWN CASTLE
SOUTH LLC, a Delaware limited liability company ("Tenant').
WITNESSETH:
WHEREAS, Joseph H. Hale and Eleanor H. Hale, individually and as Trustees of the
Joseph H. Hale and Eleanor H. Hale Revocable Living Trust (collectively, the "Hales") and
BellSouth Mobility, Inc. ("BellSouth"), a Georgia corporation, entered into that certain Option
and Lease Agreement dated December 9, 1997 which is recorded in the Official Records of Saint
Lucie County, Florida in Book 1177, Page 2662 and as Instrument No. 1669519; as amended by
that certain First Amendment to Option and Lease Agreement date August 26, 1998
(collectively, the "Agreement'), whereby the Hales conveyed a lease to BellSouth for a portion
of land consisting of approximately 22,500 square feet in Saint Lucie County, Florida, together
with access and utility easements thereto, as more particularly described in the Agreement (the
"Property"); and
WHEREAS, Lessor is the current fee owner of the land of which the Property is a part;
and
WHEREAS, New Cingular Wireless PCS, LLC, a Delaware limited liability company,
successor in interest to Bellsouth, assigned all its right, title and interest in the Agreement to
Tenant pursuant to that certain Assignment and Assumption of Option and Lease Agreement
dated April 11, 2011 as evidenced by that certain Memorandum of Assignment and Assumption
of Option and Lease Agreement dated April 11, 2011 and recorded May 25, 2011 at File No.
3595583, Official Record Book 3296, Page 1514 of the Official Public Records of Saint Lucie
County, Florida; and
WHEREAS, the Agreement has an initial term and renewal terms that will expire on
June 30, 2023 (the "Original Term'), and Lessor and Tenant desire to enter into this Amendment
in order to amend the Agreement to, among other things, provide for additional extension terms
beyond the Original Term.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are acknowledged, Lessor and Tenant agree as follows:
I. Recitals. The foregoing recitals are true and correct and are hereby made a part
hereof for all purposes.
2. Status of Parties/Estoppel. Lessor acknowledges that the Agreement is in full
force and effect and Lessor does not have any presently existing claims against Tenant or any
offsets against rent due under the Agreement. There are no (i) defaults of Tenant under the
Site Name: Minute Maid BRA360
BU#: 813700
By fmiliala Jam' L �r = -
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Agreement, or (ii) existing circumstances which with the passage of time, or notice, or both,
would give rise to a default under the Agreement.
3. Defined Terms. Any capitalized terms not defined herein shall have the
meanings ascribed to them in the Agreement.
4. Initial Term Commencement Date. The parties hereby ratify and affirm that
the commencement date for the Initial Term of the Agreement was July 1, 1998.
5. Section 4 Amendment: Term,
Section 4 of the Agreement is hereby amended
by deleting the current text and inserting in lieu thereof the following:
"Tenant shall have the option to extend this Agreement for nine (9)
additional consecutive five (5) year terms, and such extensions shall
automatically occur unless Tenant gives Lessor written notice of its
intention not to extend this Agreement at least ninety (90) days prior to the
end of the then current term."
The Initial Term and any extension terms shall be collectively referred to herein as the "Lease
Term." The parties acknowledge that pursuant to this Amendment the Lease Term exceeds the
Original Term by twenty-five (25) years and that, unless terminated sooner, the final extension
terms of the Agreement will expire on June 30, 2048.
6. Rent Adjustment. (a) On the first (Vt) day of the second (tad) full month
following full execution of this Amendment, the monthly rent shall increase to an amount equal
to The monthly rent
shall continue to adjust pursuant to the terms of the Agreement, as amended herein.
(b) Commencing Julyl, 2014, and every year thereafter (the "Adjustment Date'), the annual rent
shall increase based on the Consumer Price Index published by the Bureau of Labor and
Statistics of the United States Department of Labor for all Urban Consumers, US City Average
("CPI-U"), indicator and shall be determined by dividing the CPI-U indicator, published three
(3) months prior to the Adjustment Date, by the CPI-U indicator published one (1) year and three
(3) months prior to the Adjustment Date, and multiplying the resultant number by the annual
lease rental amount of the most recent rent. In no event shall the increase in rent calculated for
any one (1) year period exceed - of the most recent rent. In addition, in no
event shall rent calculated for any one (1) year period be less than the most recent Rent.
7. Holding Over. Section 6 of the Agreement is hereby amended to delete all
references to "fourth (4"� (5) year extension term" and insert in lieu thereof "ninth (9d) five
(5) year extension term."
8. Additional Rent. In addition to the rent currently paid by Tenant to Lessor
pursuant to the Agreement, as further consideration for the right to exclusively use and lease the
Property, if, after full execution of this Amendment, Tenant subleases, licenses or grants a
similar right of use or occupancy in the Property to an unaffiliated third party not already a
Site Name: Minute Maid BRA360
BU#: 813700
o
subtenant on the Property (each a "Future Subtenant"), Tenant agrees to pay to Lessor =
— of the rental, license or similar payments actually received by Tenant from such
Future Subtenant (excluding any reimbursement of taxes, construction cost, installation cost,
revenue share reimbursement or other expenses incurred by Tenant) (the "Additional Rent")
within thirty (30) days after receipt of said payments by Tenant. Tenant shall no obligation for
payment to Lessor of such share of rental, license or similar payments if not actually received
by Tenant. Non-payment of such rental, license or other similar payment by a Future Subtenant
shall not be an event of default under the Agreement. Tenant shall have sole discretion as to
whether, and on what terms, to sublease, license or otherwise allow occupancy of the Property
and there shall be no expressed or implied obligation for Tenant to do so. Lessor acknowledges
that Lessor shall have no recourse against Tenant as a result of the failure of payment or other
obligation by a Future Subtenant. Notwithstanding anything in this paragraph to the contrary,
the parties agree and acknowledge that revenue from subtenants and any successors and/or
assignees of such subtenants who commenced use and/or sublease of the Property prior to
execution of this Amendment shall be expressly excluded from the Additional Rent and Lessor
shall have not right to receive any portion of such revenue.
9. Section 18 Amendment: Notice. Section 18 of the Agreement is hereby
amended by deleting the address for Lessor and Tenant, and inserting in lieu thereof the
following:
LESSOR: J & E Hale Enterprises, Inc.
5171 Yacht Club Road
Jacksonville, FL 32210
TENANT: Crown Castle South LLC
c/o Crown Castle USA Inc.
Attn: Legal Department
Re: Cell Site #813700 — Minute Maid BRA360
2000 Corporate Drive
Canonsburg, PA 15317
10. Rit=_ht of First Refusal. If Lessor receives a bona fide offer ("Offer") that it
desires to accept from any person or entity (other than a subsidiary or affiliate of Lessor) that
owns towers or other wireless telecommunications facilities (or is in the business of acquiring
Lessor's interest in the Agreement) to purchase, make a loan, or give any consideration in
exchange for any interest in all, or a portion of, the Property, whether separate or as part of a
larger parcel of property, including without limitation an Offer involving: (i) fee title, (ii) a
perpetual or other easement, (iii) a lease, (iv) any present or future possessory interest, (v) any
or all portions of Lessor's interest in this Agreement including the right to receive payments of
rent, or (vi) an option to acquire any of the foregoing, an option for any of the foregoing, Lessor
shall provide written notice to Tenant of said Offer ("Lessor's Notice'), and Tenant shall have a
right of first refusal to acquire such interest on the same terms and conditions. For purposes of
this right of first refusal, an "Affiliate" is any corporation or other entity which directly or
indirectly controls or is directly or indirectly controlled by or is under common control with
Lessor, "control" shall mean the possession, directly or indirectly, of the power to direct or
Site Name: Minute Maid BRA360
BUN: 813700
cause the direction of the management and policies of such entity, whether through the
ownership of voting securities or by contract or otherwise and a "Subsidiary" shall mean any
corporation or other entity not less than of whose outstanding stock (or other
form of equity ownership) shall, at the time, be owned directly or indirectly by Lessor or
Lessor's parent, as applicable. If Lessor's Notice covers portions of Lessor's parent parcel
beyond the Property, Tenant may elect to acquire an interest in only the Property, and the
consideration shall be pro -rated on an acreage basis. Lessor's Notice shall include a copy of the
Offer, and to the extent not clearly disclosed in the Offer, the prospective buyer's (or other
parties') name, the purchase price and/or other consideration being offered, the other terms and
conditions of the offer, the due diligence period, the proposed closing date and, if a portion of
Lessor's parent parcel is to be sold, leased or otherwise conveyed, a description of said portion.
Tenant shall have a right of first refusal (the "ROFR") to (a) purchase the interest described in
Lessor's Notice on the terms and conditions outlined in Lessor's Notice, or (b) enter into with
Lessor the transaction otherwise described in the Offer, in both cases excluding those terms
which are not imposed in good faith or which are designed to defeat Tenant's ROFR. If the
Lessor's notice shall provide fora due diligence period of less than sixty (60) days, then the due
diligence period shall be extended to be sixty (60) days from exercise of the right of first refusal
and closing shall occur no earlier than fifteen (15) days thereafter. If Tenant does not exercise
its right of first refusal by written notice to Lessor given within thirty (30) days, Lessor may
convey the property as described in the Lessor's Notice. If Tenant declines to exercise its right
of first refusal, then the Agreement shall continue in full force and effect and Tenant's right of
first refusal shall survive any such conveyance. Tenant shall have the right, at its sole
discretion, to assign the right of first refusal to any person or entity, either separate from an
assignment of the Agreement or as part of an assignment of the Agreement. Such assignment
may occur either prior to or after Tenant's receipt of Lessor's notice and the assignment shall be
effective upon written notice to Lessor. The ROFR granted hereunder shalt run with the land of
which the Property is a part.
It. Representations, Warranties and Covenants of Lessor. Lessor represents,
warrants and covenants to Tenant as follows:
(a) The Property is owned by Lessor free and clear of any mortgage, deed of
trust, lien, or right of any individual, entity or governmental authority
arising under any option, right of first refusal, lease, license, easement or
other instrument, except for the rights of Tenant arising under the
Agreement as amended hereby and the rights of utility providers under
recorded easements.
(b) Upon Tenant's request, Lessor agrees to discharge and cause to be
released (or, if approved by Tenant, subordinated to Tenant's rights under
the Agreement as amended hereby) any mortgage, deed of trust, lien or
other encumbrance that may now or hereafter exist against the Property.
(c) Upon Tenant's request, Lessor agrees to cure any defect in Lessor's title to
the Property which in the reasonable opinion of Tenant has or may have
an adverse affect on Tenant's use or possession of the Property.
Site Name: Minute Maid BRA360
BUN:813700
(d) Lessor agrees to execute such further documents and provide such further
assurances as may be reasonably requested by Tenant to affect any release
or cure referred to in this paragraph, to evidence the full intention of the
parties, and to assure Tenant's use, possession and quiet enjoyment of the
Property under the Agreement as amended hereby.
12. Signing Bonus. In consideration for amending the Agreement. Tenant agrees to
pay Lessor a one-time amount of (the "Si nin
Bonus") within sixty (60) days of the full execution of this Amendment (and a memorandum of
lease and/or amendment).
13. IRS Form W-9. Lessor agrees to provide Tenant with a completed IRS Form
W-9, or its equivalent, upon execution of this Amendment and at such other times as may be
reasonably requested by Tenant. In the event Lessor's Property on which the Property is
located is transferred, the succeeding lessor shall have a duty at the time of such transfer to
provide Tenant with a completed IRS Form W-9, or its equivalent, and other related paper work
to effect a transfer in rental to the new lessor. Lessor's failure to provide the IRS Form W-9
within thirty (30) days after Tenant's request shall be considered a default and Tenant may take
any reasonable action necessary to comply with IRS regulations including, but not limited to,
withholding applicable taxes from rent payments.
14. Authori . Lessor represents and warrants that, as of the date of this
Amendment, Lessor is duly authorized and has the full power, right and authority to enter into
this Amendment and to perform all of the Lessor's obligations under this Amendment and the
undersigned has the authority to execute and deliver this Amendment to Tenant.
15. Construction of Documents. Each party hereto acknowledges that this
Amendment shall not be construed in favor of or against the drafter hereof.
16. Remainder of Agreement Unaffected. In all other respects, the remainder of
the Agreement shall remain in full force and effect. Any portion of the Agreement that is
inconsistent with this Amendment is hereby amended to be consistent.
17. Headings. The headings contained in this Amendment are for reference
purposes only and shall not modify or affect this Amendment in any manner whatsoever.
18. Entire Agreement. This Amendment supersedes that certain Letter Agreement
by and between Lessor and Tenant dated September 20, 2011 and in case of any conflict or
inconsistency between the terms and conditions contained in the Letter Agreement and the
terns and conditions contained in this Amendment, the terms and conditions in this Amendment
shall control.
19. Counterparts. This Amendment may be executed in separate and multiple
counterparts, each of which shall be deemed an original but all of which taken together shall be
deemed to constitute one and the same instrument.
Site Name: Minute Maid BRA360
BUM 813700
! J
20. Recordation. Tenant, at its cost and expense, shall have the right to record a
memorandum of this Amendment in the conveyance records of Saint Lucie County, Florida, at
any time following the execution of this Amendment by all parties hereto.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY;
SIGNATURE PAGES BEGIN ON FOLLOWING PACE]
Site Name: Minute Maid BRA360 6
BUN: 813700
8 r
IN WITNESS WHEREOF, the undersigned parties have caused this Amendment to be
duly executed as of the Effective Date.
Signed, sealed and delivered in the
presence of:
STATE OF
COUNTY OF�
LESSOR:
J & E HALE ENTERPRISES, INC.,
a Florida corporation
By: 4
Name os W le —
Title:
Pr�,do.�f
Date:
The foregoing Second Amendment to Option and Lease Agreement was acknowledged
efore me this 9'46 day of ^',,.� 2011, by
RaLc., —of J & E HALE ENTERPRISES, INC., a Florida corporation, for and
' on behalf o said entity and for the purposes, intents and consideration stated in the foregoing
Second Amendment to Option and Lease Agreement. He/She is personally known to me or has
produced d., ._— as identification.
In Witness Whereof, I have hereunto
said witnesses, on the date set forth above. ,
My Commission Expires: `1) /1 _
Site Name: Minute Maid BRA360
BU#: 813700
with said appearer and
Printed Name of Notary Public:
[Sea]]
PATRIOIA R ONATI.E'f
NotttY Pu0110 . Ow of Ftotl0I
• ray Comm. pipltn Jul 1 O, Iot0
0gpmlfsbn EE10O701
s
r
sealed and delivered in the
e of: n
t Name: 5' VK a 611M1SOK
_ 4
Print Name: CGtfdlyn T M00(es
STATE OF T&YjaS
ss
COUNTY OF Nf'tz.f! IS
TENANT:
CROWN CASTLE SOUTH LLC,
a Delaware limited liability company
By: 2W4&C
Name: van swo,
Title: Real Estate I n hianager
Date: 12M- 1 11
The foregoing Second Amendment to Option and Lease Agreement was acknowledged
befAre me this 48_ day of JCCG-t1AQEZ- 2011, by IeW—`jf(T1 SWOL,
M 1Mf CI& of CROWN CASTLE SOUTH LLC, a Delaware limited liability
company, for and on behalf of said entity and for the consideration, intent and purposes set forth
in the foregoing Second Amendment to Option and Lease Agreement. He/She is personal
known or has produced as identification.
In Witness Whereof, I have hereunto signed this acknowledgment with said appearer and
said witnesses, on the date set forth above.
My Commission Expires: :j.;$-( y
Site Name: Minute Maid BRA360
BUN: 813700
Signature of Notary Public
Y..WS'6r—MQA4iLU2(
Printed Name of Notary Public:
[Seal]
t �� —`—n]l5"c!? RJ:inEiTE G:CJdIL:ER
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v 1998 by OR• H.: HALE. (NDMDUALLYY PAS
TRUSS _ S E AND. ELEANOR 14. HALE REVOCABLE
LtVfNCvR bui bone). j are persocally known- to me or [ have
pcaeatsd- as identifiatioL.
COUNTY.OF
Thu _tbregotu9 uis�umeg� �oiv%dged before me u y�8ay of
1998. Ey - �. ac
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_ (check onej rso svu to me . or . [- ] has .preserved
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' OPT30N. AND "
_AGi(SEMSNT .
This.. Agreement -e toads': tli'day of G9. YtiY , 1927,
betweesi" 7osepii Hale- ^Pru'9t€end 8leanor N Hale T�ustea whose
address ie " - o rnandi , hereinafter
designated-LESSOR;'and-.BELL''S OTH-,,MBILITY INC," with offices at 5201
Congress Avenue,. Boca-"_Raiosi;_.f'lorida 33487, hereinafter designated
TENANT.
-'RECITALS: - --
LESSOR 9-the- owner -;of certain real property located at
,g County; -'St
to lease ='a
00') wide "ric
right of way 1
specifically c
on Exhibit "A"
.,of Florida,- and TENANT desires to obtain an
iitign -._o£ .said' real property, containing
square_ -feet, together with a twenty foot
-for :access thereto (said leased parcel and
r .called -^Property^) . The Property is more
In Asia -substantially shown outlined in red
heretq-and.made a part hereof.
- Now. TwruvOnvc n"sideration of a sum of
inafter referred to as "Option
Money", to be. paia :by 'TENANT -to" the LESSOR, which TENANT will
provide upon -its ex icutioa'.of:'this Agreement, the LESSOR hereby
grants to Tia= :the right-and_Option-to lease said portion of said
real property,. including a.right-of way' for access thereto, for the.
term and in iecgrdancd.with' Che:covenants and conditions set forth
herein.
The. Option: may="be exercised at any time within twelve (12)
months from final execution bf this Agreement by LESSOR.
At TBNANT's election,.. and upon TENANT's prior written
notificatioii to, LESSOR, ihe:--time during which the Option may be
exercised. may be further eztesided" for one (1) additional .period of
mix'(6) months.:_iaith.'anan-additioflal payment of
-TENANT-.to`"'LESSOR for the Option Perioa so
extended. The time 'during which-the'Option may be exercised may be
further extended -by -mutual agreement .in writing. If during said
Option Period, •: iir during . the;'term of the lease, if the option is
exercised, the '=LESSOR decides, -to subdivide, sell or change the
status of the .Property or'.169'sor's property contiguous thereto,
LESSOR shall immediately ndtify.TENANT in writing so that TENANT
can take steps -necessary '..to ..protect TBNANT's interest in the
LESSOR covenants that. 'LESS OR is seized of good and sufficient
title and interest to the -Pi4erty and has full authority to enter
into .and execute --this Agreement. LESSOR -further covenants that
there are no other. liens,'jndgments or impediments of title on the
Property.
This Option. may not be: sold, assigned or transferred at any
time except, to, TENANT's principal, affiliates or subsidiaries of
its principal. ..As to other parties, this Option may not be sold,
assigned or transferred.without.•.the written'consent of the LESSOR,
such consent not to. be unreasonably withheld.
Should TBNANP...fail to.„axercise this option or any extension
thereof within the .time* herein. limited, all rights and privileges
granted hereunder -:shall be.'deemed completely surrendered, this
Option terminated,.. and_LE$SOR..'shall retain all money paid for the
option, and no. additional money shall be payable by either party to
the other.
The LESSOR shall. permit TENANT during the Option Period free•f
ingress and egress to the- Property to conduct such surveys,
structural strength analysii -subsurface boring tests and other
activities of similar nature;, as TENANT may deem necessary, at the
sole cost of TENANT. In addition, TENANT shall have the right to
file anjyapplications for certificates, permits and other approvals
that may be required by 'any-1ederal, state or local authorities.
LESSOR agrees. to cooperate wi'th'TEMANT in its efforts to obtain
such approvals and sign such. -papers as may be required to file
applications with the appropriate authorities.
Notice of the exercise -of the Option shall be given by TENANT
to the LESSOR, is writing .'by -..-certified mail, return receipt
requested. Notice shall 'tie- deemed effective on the date it is
posted. on the date of such notice, the following Agreement shall
take effect:
1. . LESSOR -hereby leases to TENANT that certain parcel of
real property, containing approximately 22.500 square feet,
situated at off Minute Maid Road Pt Pierce Parcel ID #
nne...�.� ♦:R,.in nro.wVv Rhona nP Alnrida. tecether with
the nonexclusive right for- ingress and egress, seven (7) days a
week, twenty-four '124) hours 'a day, on foot or motor vehicle,
including trucks, and for the installation and maintenance of
utility wires;- cables, conduits and pipes over, under or along a
twenty foot (20',) wide right of way extending from the nearest
2
Public right of way, namely _ Minute Maid Road , to the leased
parcel, .said leased parcel and right of way for access being
substantially .as described herein in Exhibit "A" and as shown
enclosed within red lines on Exhibit "A" attached hereto and made a
part hereof. Said leased parcel and right of way for access shall
be hereinafter referred to as "Property". LESSOR shall cooperate
with TENANT in TENANT'S effbit to obtain utility services along
said right of way. -by signing such documents or easements as may be
required by said utility" companies. In the event any public
utility is unable to use' the aforementioned right of way, the
LESSOR hereby agrees to grant an alternative right of way or
utility easement either to the.TENANT or to the public utility at
no cost to the TENANT.. -
2. LESSOR also hereby. grants to TENANT the right to survey
said Property, and the legal description on said survey shall then
become Exhibit.-W, which shall be attached hereto and made a part
hereof, and shall'control in the event of discrepancies between it
and Exhibit "A". 'LESSOR grants TENANT the right to take
measurements, make calculations, and to note other structures,
setbacks, uses, or other information as deemed by TENANT to be
relevant and pertinent, as' such information relates to LESSoRts
real property, Teased or otherwise 'abutting or -surrounding the
Property. Cost for such survey.woik shall be borne by the TENANT.
3. This Agreement shall be for an initial term of five (5)
years Beginning on the date the'Ontion is exercised by TENANT at an
annual rental ,of
applicable taxes, to be paid in equal monthly installments on cne
first day of the month, in advance to Joseph H. Hale Trustee and
Eleanor H Hale. Trustee or 'to such other person, firm or place as
the LESSOR may, from time to -time, designate in writing at least
thirty (30) days in advance of any rental payment date.
4. TENANT shall have the option to extend this lease for
four (4) additional five (5) year terms, and such extensions shall
automatically. occur unless TENANT gives LESSOR written notice of
its intention not to extend this Lease Agreement at least six (6)
months prior to the and of the current term.
5
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6. If at the end.'bf. 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'six (61: 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 one (1) year, and for
annual terms thereafter until terminated by either party by giving
to the other written notice* of its intention to so terminate at
least six (6) months prior to the end of such term. Monthly rental
for this period shall be equal to the rent paid for the last month
of the fourth Nth) -five (5) year extension term.
7. TENANT shall use the Property for the purpose of
constructing, maintaining and operating a Communications Facility
and uses incidental -thereto, consisting of a building or buildings
as necessary now or in the future to shelter telecommunications
equipment and related office space, a free standing monopole or
three sided antenna structure of sufficient height now or in the
future to meet TENANT's telecommunication needs and all necessary
connecting appurtenances. TENANT may at its discretion modify its
antenna structure or building(s). A security fence consisting of
chain link construction or similar but comparable construction may
at the option of TENANT be placed around the perimeter of the
Property (not including the access easement). All improvements
shall be at TENANT's expense. .LESSOR grants TENANT the right to
use adjoining and adjacent land as is reasonably required during
construction, installation, maintenance, and operation of the
Communications Facility. TE([ANT will maintain the Property in a
reasonable condition. It is understood and agreed that TENANT's
ability to use the Property is contingent upon its obtaining after
the execution date of this Agreement, all of the certificates,
permits and other approvals that may be required by any federal,
state or local authorities. LESSOR shall cooperate with TENANT in
its effort to obtain such approvals, including dedicating right of
way or other customary extractions, and shall take no action which
would adversely affect the status of the Property with respect to
the proposed use thereof by.TENANT. LESSOR agrees to sign such
papers as are customarily and reasonably required to file
applications with the appropriate zoning authority and/or
commission for the proper zoning of the Property as required for
the use intended by the TENANT. TENANT will perform all other acts
and bear expenses associated with the rezoning procedure. LESSOR
agrees not -'to register any written' or verbal opposition to the
rezoning procedures. Notwithstanding any other termination rights
available to TENANT under this Agreement, TENANT, at its sole and
absolute discretion, shall have the right to terminate this
Agreement with ninety (90) days prior written notice to LESSOR and
a lump sum payment to LESSOR in an amount equal to six months
rental at the rate in effect at the time of termination. Notice of
the TENANTIs exercise of its right to terminate shall be given to
LESSOR in writing by certified mail, return receipt requested, and
shall be
effective upon receipt of such notice by the LESSOR as evidenced by
the return receipt. All rentals paid to said termination date
shall be retained by the LESSOR. Upon such termination, this
Agreement shall become null and void and all the parties shall have
no further obligations, including the payment of money, to each
other.
S. TENANT shall indemnify and hold LESSOR harmless against
any claims of liability or loss from personal injury or property
damage resulting from or arising out of the use and occupancy of
the Property by the TENANT, its servants or agents, excepting,
however, such claims or damages as may be due to or caused by the
.acts of the LESSOR, or its servants or agents.
9. LESSOR agrees that TENANT may self -insure against any
loss or damage which could be covered by a commercial general
public liability insurance policy.
10. TENANT shall be responsible for making any necessary
returns for and paying any and all property taxes separately levied
or assessed against its improvements on the Property.. TENANT shall
reimburse LESSOR as additional rent for any increase in real estate
taxes levied against the Property which are directly attributable
to the improvements constructed by TENANT and are not separately
levied or assessed against TENANT's improvements by the taxing
authorities.
11. TENANT upon termination of this Agreement, shall, within
a reasonable period, remove its personal property and fixtures and
restore the Property .to its original above grade condition,
reasonable wear and tear excepted. At LESSOR's option when this
Agreement is terminated and upon LESSOR's advance written notice to
TENANT, TENANT will leave the foundation and security fence to
become property of LESSOR. If such time for removal causes TENANT
to remain on the Property after termination of this Agreement,
TENANT shall pay rent at the then existing monthly rate or on the
existing monthly pro-rata .basis if based upon a longer payment
term, until such time as the removal of personal property and
fixtures are completed.
12. Should the LESSOR, at any time during the term of this
Agreement, decide to sell all or any part of his real property
which includes the parcel of property leased by TENANT herein
and/or the right of way thereto to a purchaser other than TENANT,
such sale shall be under and subject to this Agreement and TENANT's
rights hereunder. LESSOR agrees not to sell, lease or use any
other areas of the larger parcel upon which the Property is
situated for the placement of other communications facilities if,
in TENANT's sole judgment, such installation would interfere with
the facilities in use by TENANT.
13. LESSOR covenants that TENANT, on paying the rent and
performing the covenants shall peaceably and quietly have, hold and
enjoy the Property.
14. LESSOR covenants that LESSOR is seized of good and
sufficient title and interest to the real property and has full
authority to enter into and execute this Agreement. LESSOR further
covenants that there are no other liens, judgments or impediments
of title on the Property.
15. It is agreed and understood that this Agreement contains
all agreements, promises and understandings between the LESSOR and
TENANT and that no verbal or oral agreements, promises or
understandings shall be binding upon either the LESSOR or TENANT 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 and signed by the parties.
16. This Lease Agreement and the performance thereof shall
be governed, interpreted, construed and regulated by the laws of
the State of Florida.
17. This Agreement may not be sold, assigned or transferred
at any time except to TENANT's principal, affiliates or
subsidiaries of its principal or to any company upon which TENANT
is merged or consolidated. As to other parties, this Agreement may -
not be sold, assigned or transferred without the written consent of
the LESSOR, such consent not to be unreasonably withheld.
Notwithstanding the above, TENANT may permit other parties to co -
locate on the Property, with no obligation to LESSOR, as long as
this Agreement is in effect.
18. All notices hereunder must be in writing and shall be
deemed validly given if sent by certified mail, return receipt
requested, addressed as follows (or any other address that the
party to be notified may have designated to the sender by like
notice):
LESSOR: Joseph H. Hale. Trustee
Eleanor H. Hale. Trustee
_24 Marsh Creek Road
Fernandina Beach, FL 32034'
TENANT: BellSouth Mobility Inc
5201 Congress Avenue
Boca Ratan, Florida 33487
Attn: Network Real Estate Manager
ig. This Agreement shall extend to and bind the heirs,
personal representatives, successors and assigns of the parties
hereto.
20. At LESSOR's option, this Agreement shall be subordinate
to any mortgage by LESSOR which from time to time may encumber all
or part of the Property or right of way, provided, however, every
such mortgage shall recognize the validity of this Agreement in the
event of a foreclosure of LESSOR'S interest and also TENANT's right
to remain in occupancy of and have access to the Property as long
as TENANT is not in default of this Agreement. TENANT shall
execute in a timely manner whatever instruments as may reasonably
be required to evidence this subordination clause. In the event
the leased Property is encumbered by a mortgage, the LESSOR, no
later than thirty (30) days after this lease is exercised, shall
have obtained and furnished to TENANT a non -disturbance instrument
in recordable form for each such mortgage.
21. If the whole of the Property or such portion thereof as
will make the Property unusable for the purposes herein leased, are
condemned by any legally constituted authority for any public use
or purpose, then in either of said events the term hereby granted
shall cease from the time when possession thereof is taken by
Public authorities, and rental shall be accounted for as between
LESSOR and TENANT as of that date. Any lesser condemnation shall
in no way affect the respective rights and obligations of LESSOR
and TENANT hereunder. Nothing in this provision shall be construed
to limit or affect TENANT's right to an award of compensation of
any eminent domain proceeding for the taking of TENANT's leasehold
interest hereunder.
22. LESSOR and TENANT agree that this Option and Lease
Agreement will be forwarded for recording or filing in the
appropriate office of the County of _ St. Lucie and LESSOR and
TENANT agree to take such actions as may be necessary to permit
such recording 'or filing. TENANT, at TENANT's option and expense,
may obtain title insurance on the space leased herein. LESSOR,
?hall cooperate with TENANTfs efforts to obtain such title
insurance policy by executing documents or, at TENANT's expense,
obtaining requested documentation as required by the title
insurance company. If title is found to be defective, LESSOR shall
use diligent effort to cure the defects in title. At TENANT's
option, should the LESSOR fail to provide requested documentation
within thirty (30) diya of TENANT's request, or fail to provide the
Non -Disturbance instrument(s) as noted in Paragraph 20 of this
Agreement, TENANT may withhold and accrue the monthly rental until
such time as the requested document(s) is (are) received, or if
title is found to be defective and LESSOR has failed to cure the
defects within a reasonable period, TENANT may cancel this
Agreement or cure the title defect at LESSOR s expense utilizing
the withheld payments. .
23. If TENANT defaults in fulfilling any of the covenants of
7'
this Agreement and such default shall continue for sixty (60) days
after TENANT'S receipt of written notice from LESSOR specifying the
nature of said default, or, if the said default so specified shall
be of such a nature that the same cannot be reasonably cured or
remedied within such sixty (60) day period, if TENANT shall not in
good faith commence the curing or remedying of such default within
such sixty (60) day period and shall not thereafter diligently
proceed therewith to completion, then in any one or more of such
events this Agreement shall terminate and come to an end as fully
and completely as if such were the day herein definitely fixed for
the end and expiration of this Agreement and TENANT shall then quit
and surrender the Property to LESSOR as provided herein.
24. In connection with any litigation arising out of this
Agreement, the prevailing party, whether LESSOR or TENANT, shall be
entitled to recover all reasonable costs incurred including
reasonable attorneys fees for services rendered in connection with
any enforcement of breach of contract, including appellate
proceedings and post judgment proceedings.
2S. In accordance with Florida Law, the following statement
is hereby made:
RADON GAS: Radon is a natural 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
public health unit.
26. LESSOR shall hold TENANT harmless from and indemnify
TENANT against and from any damage, lose, expenses or liability
resulting from the discovery by any person of hazardous substance
generated, stored, disposed of, or transported to or over Property,
as long as such substance was not stored, disposed of, or
transported to or over the Property by TENANT, its agents,
contractors, employees, or invitees. TENANT will be responsible
for any and. all damages, losses, and expenses and will indemnify
LESSOR against and from any. discovery by any persons or such
hazardous wastes generated, stored, or disposed of as a result of
TENANT's equipment and uses of the aforementioned Property.
27. This Agreement shall be executed in three (3)
counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands
and affixed their respective seals.
LESSOR
Signed, sealed and delivered
in the presence of:
J
"^^"�a.w1CtiN.r.�ppd� BY:
Pr' t dart i
Witness Ti Print Name: mAgGARETANNWOOU :a! .41
Address
z 31o3N
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Witness /�
Print Name: M03:4. /';HY4n/
STATE OF FLORIDA
COM= OF haS50.w
The foregoing instrument was acknowledged before me this a da V
of _ �c FeL� 1927, by 3�. ply A- IA d)q-- , as"fjoyiia—•+el3EAir1d4�1( I
personally kn o me or who has who is
produced
'dentification and who did (did not) take an oath..
werL
NOTARY PYBLIC
My'Concnieaion Expires: 8,wee Print Name:MA.An�A W1__
(Seal)
NOT
MAROARETANNWODD
NOTARYFUIMSrATiOFFU
&MMWA0N NO. CMI9W
P.
9
LESSOR
Signed, sealed and delivered
in the presence of:
By:
Print Name: Eleanor N, Hale
Title: as T=etee and Individually
Address:24 Marsh Road
Fernandina Beach FL 32034
'XfcR ✓ 'Al
fitness n• 1
Print Name: cFV5# 1J P /Cal N
STATE OF FLORIDA
COUNTY OF bu✓61
The foregoing instrument was acknowledged before me this 1_0 day of
Dadlnkr , 1997, by _ Eleanor M. Hale ae Trustee and
Individually, of a who
is personally known to me or who has produced Flo,ida Drtrcrx ag—'fa
as identification and who did (did n ) take an oath.
�CGcW�iryOru�..
NOTARY PUBLIC ,
My Commission Expires: Dot, 261 i,000 Print Name: Fol'a'a.-rehonis
(Seal)
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wmnlamrnrowR�e
Signed, sealed and delivered
in the presence of:
Witness
Print Name : /ii1%Fr -J& j C . Ve o
WitnCfss
Print Name:�T�r-�
STATE OF
COUNTY OF g&& IJepg
The foregoing i atzument was acknowledged before me this p�iay
of , 1997, by J�.a A4.-w das
as �Pi..�t L/.� of BELLSOUTB MOBILITY INC, a
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Georgia co'�ration, who is personally known t me or who has
produced — as identification and
who did (did not) take anoath.
NOTARY POBL
My Commission Expires: Print Name: �)�
000M LUZ 09/09/97
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