HomeMy WebLinkAboutROOFTOP OPTION AND LEASE AGREEMENTFL Cingular Site: Hutchinson Island
ROOFTOP OPTION AND LEASE A—GREEMENT
SCANNED
BY
St. Lucie County
Sob THIS ROOFTOP OPTION AND LEASE AGREEMENT (the "Agreemem!'), is made this
day of _NaQdn�e-r- . 2003 by and between REGENCY ISLAND DUNES
ASSOCIATION, INC., a Florida non-profit corporation (the "LANDLORD") and
BELLSOUTH MOBILITY LLC, a Georgia limited liability company, d/b/a Cingular Wireless, its
affiliates, successors and assigns, (the "TENANT").
MPERTY
LANDLORD represents and warrants that. it is the entity responsible for the operation of
REGENCY ISLAND DUNES ASSOCIATION, INC., a Condominium according to the
Declaration of Condominium thereof as recorded in Official Records Book 1078, Page 1919 of the
Public Records of St. Lucie Counq� Florida, and any amendments thereto. LANDLORD has the power
and authority to lease portions of the common elements of the condominium purstiant to provisions of'
Section 718.111(4), Florida Statutes and the Declaration of Condorninium. The certain real property�
building and rooftop space is located in City of Jensen Beach County of St. Lucie, State of Florida
as further described on Exhibit "A" attached hereto ("Property"), and TENANT desires to obtain
an option to lease a portion of the rooftop of the building on the Property, having an address at
8600 South Ocean Drive, Jensen Beach, FL 34957. as said rooftop is described in Exhibit "W' for
the installation and placement of its equipment within a structure on the rooftop and for the
mounting of various antennas and associated coaxial cables and supports. ("Rooftop Space")
together with certain easements for access and utilities (hereinafter collectively described as the
"Leased Premises"). The Leased Premises is more specifically described in, and substantially
shown on Exhibit "B" attached hereto and shall fitither be described in a sketch of survey which
shall inthe future be attached hereto as Exhibit "R." TENANT also desires to obtain a non-
exclusive right for ingress and egress to the Leased Premises, parking areas and elevators, sewn (7)
days a week twenty�-fbur (24) hours a day, by notifying the Security Guard at (772) 2294041 in
the event of an emergency, or anytime after notice, during normal business hours between 8:00 a.m.
until 4:30 p.m., Monday through Friday. TENANT shall notify LANDLORD in advance, and
obtain approval, if TENANT intends to access the Property during non -business hours unless in the
case of emergency, in which case the right of ingressand egress may be exercised by notifying the
Security Guard at (772) 229-4041, for the installation, maintenance and operation, all at
TENANT's sole expense, of a wireless communications facility.
OPTION
NOW THEREFORE, in consideration of the sum or
DOLLARS (1@10M (the "Option Money"), to be paid by T�ENANTto LANDLORD within
thirty (30) days of TENANT's execution of this Agreement. but in no event later than fortymfive
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(45) days from the date LANDLORD executes this Agreement, LANDLORD hereby giants to
TENANT the exclusive right and option (the "Option!) to lease the Leased Premises in accordance
with the term and conditions set for& herein.
A. Option Perio . The Option may be exercised at any time within six (6) months of
execution of this Agreement by all parties (the "Option Period'). If TENANT fails to exercise the
Option within the Option Period, the Option shall terminate, all rights and privileges granted
hereunder shall be deemed completely surrendered, and LANDLORD shall retain all money paid
for the Option, and no additional money shall be payable by either party to the other. However, if
TENANT exercise its option during the Option Period to commence the lease, LANDLORD
acitnowledges that --W Of
the Option Money shall be returned to TENANT in the form of a Rental credit to be credited
towards the first month and a portion of the second month's Rental.
B. Trans-ft of 02go. The Option may be sold, assigned, or transferred at any time
by TENANT to TENANTs parent company or any affiliate or subsidiary of, or partner in
TENANT or its parent company or to any third party agreeing to be subject to the terms hereof
with a not worth in excess of Fifty Million Dollars ($50,000,000.00). From and after the date the
Option has been sold, asAgned or transferred by TENANT to a &W party agreeing to be subject to
the terms hereof, TENANT shall immediately be released fitun any and all liability under this
Agreement, including the payment of any rental or other sums due, without any fitither action,
C. Chanaes in Property During Option Period. If during the Option Period or any
extension thereof, or during the term of this Agmmt if the Option is exercised, LANDLORD
decides to subdivide, sell, or change the status of the zoning of the Leased Premises, the Property
or the other real property of LANDLORD contiguous to, or in the vicinity of the Property
C'Surrolmiling Property"), LANDLORD shall promptly notify TENANT in writing. Any sale of
the Property or Surrounding Property "I be subject to TENANrs rights under this Agreement.
LANDLORD agrees that during the Option Period or any extension thereof, or during the term of
this Agreement if the Option is exercised, LANDLORD shall not mitiate or consent to any change
in the zoning of the Leased Premises, LANDLORDs Property or Surrounding Property or impose
or consent to any other restriction that would prevent or limit TENANT from using the Leased
Premises for the uses intended by TENANT as hereirtafter set forth in this Agreement.
D. lit
Le. LANDLORD covenants that LANDLORD is seized of good and sufficient
title and interest to the Property and Leased Premises and.has figl authority to enter hito and execute
this Agmement LANDLORD further covenants that there we no liens, judgments or impediments
of title on the Property *9 would prevent TENANT froin using the Leased Premises for the uses
intended by TENANT as set forth in this Agreement. In addition to the foregoing, LANDLORD
Ruther represents that its authority and capacity to enter into this Lem are not restricted or impaired
in any way by the condominiuni declaration or other condominium instruments existing with respect
to the Property Mondominium Documents").
E, Inspections LANDLORD shall permit TENANT and TENANT's employees,
agents� and contractors during the Option Period, and any extension thereof, free ingress and
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to the Leased Premises by TENANT or its employees, agents, and contractors to conduct
structural strength analysis, surveys, roof inspections subsurface boring tests, environmental
inspections (including Phase I and Phase 11 audits), radio frequency tests, and such other tests,
investigations, and similar activities as TENANT may deem necessary (collectively "the
Inspections"), at the sole cost of TENANT. TENANT shall be responsible for any damage caused
on the property as a result of the Inspections, and TENANT agrees to repair at TENANT's sole
cost any damage caused by the Inspections. The scope, sequence, and timing of the Inspections
shall be at the sole discretion of TENANT. After notice. the Inspections may be commenced at any
time during the aforementioned Option Period and if the Option is exercised, at any time during the
term of the Agreement, TENANT and its employees, agents and contractors shall have the right to
bring the necessary vehicles and equipment onto the Leased Premises, the Property and the
LANDLORIYs Surrounding Property to conduct such tests, investigations, and similar activities.
TENANT agrees that it will use its beg efforts to make sure that all normal construction vehicles
brought onto the Leased Premises shall be parked or stored, as the am may be, only in such areas as
may be designated by LANDLORD CConstruction Area Parft'). However LANDLA)RD agrees that
during the initial installaition, after notice and LANDLORD approval, if TENANT's vehicle(s) do not fit
or cannot reach the Rooftop Space, TENANT shall have the right to park its vehides-m an area that is
mutually agreed on by LANDLORD and TENANT that will be suitabl% fbr the installation of
TENANT's equipment fitedity. If any of TENANTs surveys, roof inspection% arudy4 tests or other
activities indicate that repairs are required to the Rooftop Space in order to prepare the Rooftop Space
for the installaition of TENANT's equipment, upon the mutual agreement of LANDLORD and
TENANT, LANDLORD shall promptly perform or cause to be performed such repairs which may be
necessary to meet the needs of the TENANT. LANDLORD shall inform TENANT within fifteen
(15) days after receipt of TENANT's request for repairs pursuant to this section whether
LANDLORD elects to perform the repair. and if LANDLORD does not elect to perform the repair
but is willing to allow TENANT to perform the repairs, TENANT shall have the option to perform
the repairs at its cost, In the event that neither LANDLORD nor TENANT elects to perform the
repairs, this Agreement shall be deemed terminated and of no ffirther force or effect, and TENANT
shall quit and surrender theProperty and Rooftop Space as provided herein, and LANDLORD shall
be entifled to retain all prepaid Option Money. AM deficienciesevidenced in the repair reports shall
be deemed preexisting conditions and TENANT shall not be responsible fbr or required to repair
any item evidenced in the repair reports. In addition, TENANT shall have the right to file any
applications for certificates, permits and other approvals that may be required by any federal, state
or local authorities. LANDLORD agrees to cooperate with TENANT in its efforts to obtain such
appro*s and sign such papers as may be required to file applications with the appropriate
authorities. TENANT shall indemnify and hold LANDLORD harmless against any loss or damage
for personal irjury or physical damage to the Leased Premises, the Property, LANDLORDs
Surrounding Property, or the property of third. parties resulting from any Inspections. Intheevent
that LANDLORD is a lessee of the Property, LANDLORD shall use its best efforts to obtain a
consent to this Agreement from the underlying Lessor and any necessary documentation to allow
TENANT the ability to perform any of the above Inspections on the Property. Furthermore,
LANDLORD shall provide,, upon TENANT's request, any existing documentation in
LANDLORD's possession related to the Property including, but not limited to, an existing survey
and copies of any existing reports and applications that TENANT deems reasonably necessary.
Upon written request, TENANT shWI furnish to LANDLORD copies of the environmental
findings. However, LANDLORD shall not rely on said environmental findings for anything outside
this Agreement and shall indemnify and hold TENANT harmless from such findings., In addition,
TENANT shall have the right to Me any applications for certificates, permits and other approvals that
may be required by any federal, state or local authorities. LANDLORD agrees to cooperate with
TENANT in its efforts to obtain such approvals and sip such papers as may be required to file
applications with the appropriate authorities,
F. SUrvevs, LANDLORD also hereby grants to TENANT the right to survey the
Leased Premises and the Property, and the legal description of the Leased Premises on the survey
obtained by TENANT shall then become Exhibit "B", which shall be attached hereto and made a
part hereof and shall control in the event of discrepancies between it and the terms of this
Agreement.
G. GovernmenW Approvah. TENANrs ability to use the Leased Premises is
contingent upon its obtaining all certificates, permits, licenses, and other approvals that may be
required by any governmental authorities. LANDLORD shall cooperate with TENANT in its effort
to obtain such certificates, permits, licenses, and other approvals. During the Option Period, and
during the term of this Agreement if the Option is exercised, LANDLORD agrees to sign such
papers as are required to file - applications with the appropriate zoning authority and other
governments] authorities for the proper zoning of the Property and for other certificates, permits,
licenses, and approvals as are required for the use of the Leased Premises intended by the
TENANT. If requested by TENANT, any such applications may be filed with respect to not only
the Leased Premises, but also LANDLORIYs Property. TENANT will perform all other ads and
bear, all expenses associated with any zoning or other procedure necessary to obtain any certifirate,
permit, license, or approval for the Property deemed necessary by TENANT. LANDLORD agrees
not to register any written or verbal opposition to any such procedures,
H. Utility Servi . During the Option Period, and during the term of this Agreement
if the Option is exercised, LANDLORD shall cooperate with TENANT in TENANTs effort to
obtain utility services to the Leased Prernises along the access right-of-way contained in the
Property or other portions of LANDLORD's Surrounding Property, by siong such documents or
easements as may be required by the utility companies, In the event any utility company is unable
or does not desire to use the aforementioned right-of-way, LANDLORD he4y agrees to giant an
additional right-of-way either to TENANT or to the utility company at no cost to TENANT. If
LANDLORD fails to fulfill LANDLORD's obligations to cooperate with TENANT as required
hervin in obtaining the governmerital approvals or utility services contemplated by this Agreement
then in addition to any rights or remedies that TENANT may have at law or in equity, TENANT
shall also be entitled to reimbursement from LANDLORD, upon demand, of all cosmand expenses
incurred by TENANT in connection with its activities under this Agreement, including but not
limited to costs of environmental assessments, title examinations, zoning application fees, and
attorneys' fees and other legal expenses of TENANT. In the event LANDLORD desires to relocate
the utilities and utility easement(s), LANDLORD will obtain all certificateM permits and other
approvals required by the utility company at LANDLORD's sole cost. All activities related to the
relocation of such utilities shall not inte&re with the construction, maintenance, or operation of
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TENANT's facility.
1. Lxgreise of OPILon. TENANT shall exercise the Option by written notice to
LANDLORD by certified mail, return receipt requested. The notice shall be deemed effective on
the date it is posted, On and after the date of such notice, this Agreement shall also constitute a
Lease Agreement between LANDLORD and TENANT on the following terms and conditions:
LEASE AGREEME
I . Lease of Pr-ooffty LANDLORD hereby leasm to TENANT the Leased Predises
as described above, for the installation and placement of its equipment within a structure on the
rooftop and fbir the mounting of various antennas and associated coaxial cables and supports
("Rooftop Spaa) together with certain easements for access and utilities (hereinafter collectively
described as the "Lemed Premises!) in accordance with Paragraph I(a) and &a shown on Exhibit
"B," incorporated hereto and as shall further be described in a sketch of survey which in the future
shall be attached hereto as Exhibit "B," together with the grant of a rionexclusive right and
easement during the term of this Agreement for ingress and egress to the Leased Premises, after
notice, seven (7) days a week, twenty-four (24) hours a day, including during normal business
hours between 8:00 a.m. until 4:30 p.m., Monday through Friday. TENANT shall notify
LANDLORD, in advance, if TENANT intends to access the Property during non -business hours
unless in the case of emergency, in which cam the tight of ingress and egress may be exercised with
notice to the Security Guard at (772) 229-4041, on foot or motor vehicle, including trucks� to the
Pro", Construction Area Parking and elevators, forthe installation, maintenance, and operation, all at
TENANT's tole expense, of the following wireless equipment and associated antierim: TENANT
agrees that ii will use its best efforts to make sure ft all normal construction vehicles brought onto the
I tased Premises shall be parked or stored, as the case may be, only in such areas as may be designated
by LANDLORD. However LANDLORD agrees that during the initial installatioN after notice and
LANDLORD approvaL if TENANT's vehicle(s) do not fit or citrinot reach the Rooftop Space,
TENANT shall have the right to park its vehicles in an area that is mutually agreed on by LANDLORD
and TENANT that will be suitable, for the installation of TENANT's equipment flicifity.
(a) Directional antenna system, associated equipmem, and up to ftee microwave
dishes mounted upon the.RDoflop Space. The antermas may be mounted at a sufficient heigla now or in
the future so that the sigrials trimsmitted and received thereby will not be impeded by the building or any
other structure located thereon. The exact location on the building roof will be mutually agreed upon by
TENANT and LANDLORD. Subject to LANDLORDs approval winch shall not be unreasonably
withheld, conditioned or del*,ed, TENANT may make such alterations to said Rooftop Space as are
necessary Prior to commencernent of any alteration TENANT shall! submit detailed plans of proposed
altenttion to LANDLORD for its approval. TENANT shalill submit said plans to LANDLORD,
LANDLORD?s authorized representative fbr approval of the plans on behalf of LANDLORD.
LANDLORD 6W have thirty (30) days after receipt of TENANT's plans to review and approve same.
Failure on the part of LANDLORD to notify TENANT within the thirty (30) day period shall constitute
a waiver ofLANDLORDs rights hereunder and the plans shall be deemed approved.
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Said alteration fiirthcrrnore� are to be performed in a workmanlike manner and done so
that no mechanic's. labotere or materialineds liens will be perinitted on the building Upon the
termination of this Agreement, TENANT shall remove all of its equipment from the Leased Prenrises
and repair any damage done by said removal. TENANT agrees that all work performed on the
condominium building will be performed by a licensed contractor and any damage to the
condominium caused by such contractor -Ail] be promptly repaired. TENANT, prior to making any
improvements on the, property, shall at its sole cost and expense provide to LANDLORD an
engineering report from an independent third party structural engineer certifying that the proposed
improvements which are the subject of this Agreement will not result in any damage to the building
or any portion thereof.
(b) A prefabricated comirmurications building, placement of an equipment cabinet
on an elevated platform use of interior space for an equipment, room, buildout or construction of a
contratinications building consisting of wireless commurrications equipment to be installed or constructed
on approximately One hundred (10D) square feet of Property as indicated on Exhibit OR" attached
hereto. LANDLORD acknowledges that the square footage.containal in this section dam not include
that portion of the Rooftop Space occupied by the antennas nor the flexible coaxial transmission fines
between the various antennas on the Rooflop Space and the radio equipment building located on the
Leased Premises refi:rred to in this section, In the event of any discrepancy regarding the square footw
of TENANT'& lased Pretnism the depiction as set forth in Exhibit "B" attached hereto and made a
pan hereof shall govern. The patties hereto agree that in the event that a sketch of survey depicting the
as -built equipment on the Leased Premises is not available as of the date of the execution of this
Agreement, said sketch of survey showing the as -built equipment shall in the future replace the existing
Exhibit "B" attached hereto.
(c) Flexible coaxial transmission fines shall be run between the various antennas on
the Rooftop Space and the radio equipment building located on the Leased Pretnises rekred to in l(a)
and I(b) above (hereinafter, the equipment described in Sections I(&) (b) and (c) shall be collectively
re&n-ed to as "Communications Facility").
(d) TENANT agrees to install mdio equipment of a type and ftequency which will
not cause interffierice with the operations of existing tenants of the Property as such operations exist at
the time of TENANT's installation. In the everd TENANTs equipmera causes interference, TENANT
will take all steps necessary to correct and eliminate� such interfemce at its sole cost. LANDLORD
agrees not to allow any firture tenant or allow any current tam to modify or add to its existing wireless
use of the roof that would cause interference with or cause the improper operation of TENANTs
Communication Facility LANDLORD reserves the pght to place any and all further wireleu
oommunicadon equipment on the roof whether or not such equipment belongs to competitors of
TENANT, LANDLORD agrees not to allow any firture teriants use of the roof or addition and/or
modification to any current teriants use of the roof to cam interference with or cause the improper
operation of TENAIIMS equipment. LANDLORD agrees that it sW place a provision in all leases with
third panics of the Property and roof subsequent to this Lease Agreement which will state in pertinent
part that any installation of equipment on the roof cannot cause interference with TENANT's then
existing equipment. LANDLORD finiher agrees that it shall strictly enforce tlds provision against future
tenards of the roof upon reasonable notice from TENANT of interference with its then existing
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equipment. LANDLORD may lease out roofTights to other tenants, subject to the terms and conditions
contained herein.
(e) LANDLORD shall cooperate with TENANT in TENANTs effbit to obtain
utility services by signing such documents or easements as may be required by said utility companies.
TENANT sluill flimish the Leased Premises with electric service sufficient for the operation of its
Contriumications Facility. Any change in wristing electrical facilities required to meet the needs of
TENANrstommunications Facility shall be made at TENANrs expense. Anyspecialeleatricalliam
conduit, circuit breaker switches or other electrical facilities "I be installed by a qualified electrical
contractor of TENANTs choice and at TENANTs expense TENANT shall maintain said special
electrical fluilities at its sole cost� risk and experise.
(f) Any antenna to be installed upon the Rooftop, Space subsequent to the initial
installation of the directional antenna system shall be subject to LANDLORIYs prior written
approval, which shall not be unreasonably withheld, conditioned or delayed. LANDLORDs fhilure
to approve or disapprove any additional items within thirty (30) days following the request therefor
shall be deemed an approval. TENANT's ability to change out, add or modify equipment, within
the equipment shelter may be peribrined without LANDLORD's consent.
2. Initial Tenn and Rental This Agreement shall be for an initial term of five (5)
years ("Initial Tearr) beginning on the date tke_ Option is exerci!1k&.Ta!�U (the
"Commencement Date") at an annual rental Of
QgLficable paid in goal monthl r install =ents
—iQ6 on the
first day of each month during the Initial Tem, in advance, to the LANDLORD or to such other
person, firm or place as the LANDLORD may, from time to time, designate in writing at least thirty
(30) days in advance of any rental payment date. If the Commencement Date is on a date other
than the,first day of a calendar month, TENANT "I make a prorated payment of the installment
of the annual.rental payable for the first and last month of the term of this Agreement.
TENANT will have the right, at its sole cost and expense, to use a direct deposit system
with regard to rent payments. LANDLORD agrees to cooperate with TENANT in providing
requisite information to TENANT fbr such direct deposit.
3. Extension of Term. TENANT shall have the option to extend the term of this
Agreement for fi)ur (4) additional consecutive five (5) year periods ("Extended Term"). Each
option for an Extended Term shag be deemed automatically exercised without notice by TENANT
to LANDLORD unless TENANT gives LAN13LORD written notice of its intention not to exercise
any such extension option at least six (6) months prior to the end of the then current tem. If
TENANT gives LANDLORD written notice of its intention not to exercise any such option; the
term of this Agreement shall expire at the end of the then current tem. All re&rences herein to the
term of this Agreement shall include the term as it is extended as provided in this Agreement.
4. Extended Tenn Rental, The annual rental for the Extended Term shall increase by
FIFTEEN percent (15%) per term over the annual rental for the previous tem. The annual rental
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for the Extended Term shall be payable in the same manner as the annual rental for the Initial Term.
5. Continuance of 1&ase. If, at least six (6) months prior to the end of the fburth
(4th) Extended Tenn, neither LANDLORD nor TENANT has given the other written notice of its
desire. that the term of this Agreement end at expiration of the fourth (4th) Extended Term, then
upon the expiration of the fourth (4th) Extended Tenn this Agreement shall continue in force and
effect 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 terminate at lead six (6) months prior to, the end of any such annual term. Monthly
rental during such annual terms shall increase by three (3%) over the annual rental for the previous
year beginning with the last month of the fourth (4th) Extended Term.
6. U�L& TENANT shall use the Leased Premim for the purpose of constructing,
maintaining, and operating a communications facility and uses incidental thereto, as detennined by
TENANT, now or in the fitture� to meet TENANrs telecommunication needs, which may also
include a security fence, of chain link or comparable. construction that nay, at the option of
TENANT, be placed around the peTimeter of the Leased Promises. Upon LANDLORD's approval,
which approval shall not be unreasonably withheld, conditioned or delayed, TENANT shall be
allowed to modify, supplement, replace, remove, or relocate any of its antermas, microwaves,
equipment in the shelter or other appurtenances during the Initial Term of this Agreement and any
extensions thereof. All improvements, modifications, supplements, replacements, removals., or
relocatio ns� which are approved by LANDLORD and are necessary for TENANTs continued use,
shall be made at TENANTs expense. LANDLORD grants TENANT the right to use such Portions
of LANDLORD's Property and Surrounding Property as are reasonably required during
construction, installation, maintenance, and operation of the Communications Facility. TENANT
agrees that all work performed on the condominium building will be performed by a licensed
contractor and any damage to the condominium caused by such contractor will be promptly
repaired. TENANT shall maintain.the Leased Premises in a reasonable'condition and shall be solely
responsible for the repair and maintenance of all of TENANTs improvements an the Leased
Premises, excluding repair and maintenance due to the willful misconduct or negligence of the
LANDLORD, its employees, agents, or contractors. The Leased Premises shall be used for, and
LANDLORD agrees that TENANT is authorized to perform, the installation, maintenance, and
operation, all it TENANTs sole expense, of the equipment and associated -antennas as described in
Paragraphs I(a), (b) and (c). VTENANT has not performed or caused to be performed an inspection
of the roof of the Rooftop Spam during the Option period as authorized by this AffeerneK TENANT,
during the term of this Agreement, at the sole cost of TENANT, has the right to perform or cam to be
performed an inspection ofthe roof of the Rooftop Space. TENANT shall provide LANDLORD with a
copy of any'roof inspection mwit prepared pursuant to this paragraph (the "Report") and LANDLORD
shall acknowledge in writing the condition of the roof as set forth therein. In the event the Report
indicates that repairs am required to prepare, maintain and/or repair the roof in order to provide for
TENANT's occupancy of the Rooftop Space� upon the mutual agreement of the parties, LANDLORD,
at LANDLORD's discretion, shall promptly perform or cause to be performed such repairs in order to
meet the needs of TENANT. LANDLORD shall inforin TENANT within fifteen (15) days after
receipt of TENANrs request for repairs pursuant to this section whether LANDLORD elms to
perform the repair, and if LANDLORD does not elect to perform the repair but is willing to allow
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TENANT to perform the repairs, TENANT, in its sole discretion shall have the option to perform
the repairs at its cost. In the event that neither TENANT elects not to perform the repairs,
TENANT shall be entitled, in its sole discretion, to terminate this Agreement upon giving notice to
LANDLORD. All deficiencies evidenced in the Report shall be deemed preexisting conditions and
TENANT shall not be responsible for or required to repair any itern as evidenced in die Report.
if during the term of this Agreement, as same may be extended, LANDLORD needs to
perform maintenance work to LANDLORD's equipment on the roof of the Building or repair or
replace the roof of the Buflding C'Roof Work"), TENANT agrees to cooperate and work with
LANDLORD to achieve said Roof Work. LANDLORD agrees to provide at least thirty (30) days
written notice to TENANT (except for repair or replacement Roof Work in which case
LANDLORD shall provide at least forty-five (45) days written notice to TENANT) of its intention
to perfbm said work; except in the case of emergency Roof Work in which case LANDLORD
shall give as much notice as possible under the circumstances, Such plan may require the relocation
of Antenna Facilities at TENANT's cost and expense or TENANT's installation of temporary
equipment including, but not limited to, a cell -site on wheels. Moreover, if a temporary relocation
of Antenna Facilities is required to accommodate the Roof Work, the parties shall determine the
most technically suitable alternative location which will not impede the Roof Work. In
consideration to TENANT for any expense and downtime TENANT will incur as a result of the
Roof Work, LANDLORD agrees that during the temporary relocation period, TENANT shall be
entitled to a temporary abatement of rent fbr any time that TENANT's Antenna Facilities are
inoperable until the Roof Work is complete and construction and installation of TENANT's
Antenna Facilities are permanently reinstalled and reconstructed on the original location of the Roof
Area. Notwithstanding the foregoing, TENANT shall move Antenna Facilities back to its original
location after the Roof Work is completed unless the patties mutually agree to utilize. the relocated
area permanently-
7. Governmental Angrovals LANDLORD shall cooperate with TENANT in its
effort to obtain and maintain in effect all certificates, permits, licenses, and other approvals required
by governmental authorities for TENANT's use of the Leased Premises. The obligations of
LANDLORD as set forth herein during the Option Period with respect to governmental approvals
shall continue throughout the term of this Agreement. If at any time during the term of this
Agreement, TENANT is unable to use the Leased Premises for a communications flicility in the
manner intended by TENANT due to imposed zoning conditions or requirements, or in the event
that after the exercise of the Option, any necessary certificate, permit. license� or approval is finally
roeded or any previously issued certificate, permit" license, or approval is canceled, expires, lapses,
or is otherwise withdrawn or terminated by the applicable governmental authority, or radio
ftequency propagation tests are fbund to be unsatis&ctory so that TENAML in im sole discretion.
will be unable to use the Leased Prernises for a communications facility in the manner intended by
TENANT, TENANT shall have the right to terminate this Agreement by written notice to
LANDLORD. In such case, LANDLORD shall retain all rentals paid to LANDLORD prior to the
termination date. Upon such termination, LANDLORD and TENANT shall have no fiuther
obligations to each other, other than TENANT's obligation to remove its property as hereinafter
provided.
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8. InItrIerence.
(a) LANDLORD understands and agrees that the continuity of TENANT's
services is of paramount importance to TENANT. LANDLORD shall at all times exercise the
highest standard of care and judgment to prevent damage to TENANT's services. LANDLORD
will cause its other tenants to verify by firequency search that its signal will not interfere with
TENANT's Communications Facility as of the date of execution of this Agreement. In the event
LANDLORD's or LANDLORD's other tenants' signal causes material interference with
TENANT's Communication Facility, LANDLORD will,exercise its best efforts to promptly and
diligently resolve such problems after notice by TENANT. In the event that material interference
continues for a period of forty-eight (48) hours after TENANT sends written notice to
LANDLORD, TENANT shall so notify LANDLORD in writing, and LANDLORD shall cause the
interfering operation to cease except for brief tests which are necessary to determine the cause of
the inteftenoe. If such interference comot be eliminated, TENANT, in its discretion, has the right
to (i) request LANDLORD to cause the interfering party to cease operations permanently or (H)
request LANDLORD, upon full agreement with TENANT, to allow TENANT to relocate to a
different location on the ProperM at LANDLORD's expense or (6i) immediately terminate this
Agreement without further obligation to LANDLORD. Material interference shall be deemed to be
any interference, which violates the terms and conditions of transmitter licenses, and/or rules and
regulations of the Federal Communications Commission. In no event will LANDLORD be liable
fbr any consequential damages'(including, without firnitation, lost profits) arising from any such
interference.
(b) TENANT understands and agrees that the continuity of LANDLORD's
services is of paramount importance to LANDLORD. TENANT shall at all times exercise the
highest standard of care and judgment to prevent damage to LANDLOWs services. TENANT
will verify by frequency search that its signal will not interfere with LANDLORD's or
LANDLORD's other tenants' communication facilities on LANDLORD's Property that are
predecessors to TENANT on the roof as of the date of execution of this Agreement. In the event
TENANT's signal causes material interference with LANDIA)RD's communication facilities,
TENANT will exercise its best effbrts to promptly and diligently resolve such problems after notice
by LANDLORD. In the event that material interference continues for.a. period of forty-eight (48)
hours after LANDLORD sends written notice to TENANT, LANDLORD shall so notify TENANT
in writing and TENANT shall cause the interfering operation to cease except for brief tests which
are necessary to determine the cause of the interference. If such interference cannot be eliminated,
LANDLORD, in its discretion, has the right to (i) request TENANT to cam the interfering
operation to cease permanently or (H) allow TENANT to relocate at a different location on the
Property, at TENANT's expense or (Hi) immediately terminate this Agreement without further
obligation to TENANT, Material interference shall be deemed to be any interference, which
violates the term and conditions of transmitter licensets, and/or rules and regulations of the Federal
Communications Commission. In no event will TENANT be liable for any consequential damages
(incluifing, without limitation, lost profits) arising from any such interference.
9. T4xes. TENANT shall be, responsible for making. any necessary returns for and
paying any and all personal property taxes separately levied or assessed against TENANT's
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facilities or the improvements constructed by TENANT on the Leased Premises. Taxes am not to
be considered as additional rent, but rather as reimbursement to LANDLORD and to be separately
billed. TENANT shall pay for any documented increase in ad valorem real estate taxes levied
against the Property which are directly attributable to the improvements constructed by TENANT
on the Property and am not separately levied or assessW by the taxing authorities against TENANT
or the improvements of TENANT. LANDLORD shall pay all other ad valorem real prop" taxes
levied against the Property on or before the date such taxes become delinquent. LANDLORD
hereby agrees that if the taxes Which are levied against the LANDLORD and TENANT's
improvements on LANDLORD's Property are incorrectly assessed. TENANT maintains the right
to appeal the tax assessment to the appropriate governmental authority, said appeal shall be paid fbr
by TENANT. Should the state in which the Property is located offer an early payment tax
incentive, LANDLORD hereby agrees that TENANT shall be allowed to pay the taxes under the
incentive plan which shall allow for TENANT to take advantage of any offered incentives.
LANDLORD shall ftu-nish documentation to TENANT within thirty (30) days of receipt by
LANDLORD or LANDLORD's representative of the tax assessment for any assessed taxes which
are levied against the Leased Premises. LANDLORD's ability to bill TENANT for said taxes is
limited to the current year tax billing in question. In no event will LANDLORD have the ability to
bill for pro-rata share or estimates of taxes on future tax billings.
10. Insurance. TENANT shall, at its sole cost and expense, at aft times during the term
of this Agreement maintain in effect a policy or policies of insurance: a) coveting its personal
property located on the Leased Premises and TENANT's improvements to the Leased Premises
paid for and, installed by TENANT, providing protection against any peril included under insurance
industry practices within the classification "fire and extended ooverage�" providing protection ks
deemed desirable by TENANT with respect to its personal property and to the full insurable value
of its TENANT improvements paid for by TENANT; and b) Commercial General Liability
insurance with minimum limits of $1,000,000 for injury to or death of one or more persons in any
one occurrence and $1,000,000 for damage to or destruction of properties in any one occurrence.
TENANT shall name the LANDLORD as an additional insured as its interest may appear in regards
to the aforementioned policies and shall furnish LANDLORD with a certificate of insurance upon
request by the LANDLORD.
11. Self-insurance LANDLORD acknowledges that TENANT is or may be a self -
insurer with respect to all or a substantial portion of the risks commonly insured against under
standard fire and extended coverage and commercial general liability insurance policies.
Notwithstanding any provision of the Lease to the contrary, so long as TENANT is BellSouth
Mobility LLC or any subsidiary, or principal or other affiliate thereof, and has a net worth in excess
of raty Million Dollars, ($50,000.000.00) TENANT shall not be required to obtain or maintain any
insurance policies otherwise required of TENANT under this Lease and any such insurance as nay
be� ffam time to time, maintained by TENANT will be fbr the sole and exclusive benefit of
TENANT in furtherance of its risk management and self insurance policies and programs. In the
event that TENANT should no longer be BellSouth Mobility or any subsidiary� or principal or other
affiliate thereof, such TENANT shall be obligated to obtain and maintain the required insurance
policies.
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12. Indemnification.
(a) TENANT shall indemnify and hold LANDLORD harmless against any
liability or loss from personal injury or property damage resulting from or arising out of the use and
occupancy of the Leased Premises by TENANT or its employees or agents, excepting, however,
such liabilities and losses as may be due to or caused by the acts or ornissions of LANDLORD or
its employees or agents.
(b) LANDLORD shall indemnify and hold TENANT harmless against any
liability or loss from personal injury or property damage resulting from or arising out of the use and
occupancy of the Property by LANDLORD or its employees or agents, excepting, however, such
liabilities and losses as may be due to or caused by the.acts or omissions of TENANT or its
employees or agents.
13. Sale ol Property If LANDLORD, at any time during the Initial Term or any
Extended Term of this Agreement, decides to sell. subdivid% or rezone any of the Leased Premises,
or all or any pan of LANDLORD's Property or Surrounding Property, to a purchaser other than
TENANT, LANDLORD shall promptly notify TENANT in writing, and such sale shall be subject
to this Agreement and TENANT"s rights hereunder. LANDLORD agrees not to sell, lease, or use
any areas of LANDLORDs Property or Surrounding Property for the installation, operation, or
maintenance of other wireless communications facilities if such installation, operation, or
maintenance would interfere with TENANT's facilities as determined by radio propagation tests
performed by TENANT at purchasing parties' expense. If the radio fi-equency propagation tests
demonstrate levels of interference unacceptable to TENANT, LANDLORD shall be prohibited from
selling, leasing, or using any areas of LANDLOR[Ys Property or Surrounding Property.
LANDLORD shall not be prohibited from the selling, leasing, or using any of LANDLORD's
Property or Surrounding Property for non -wireless communication use.
14. Ooiet Enioyment LANDLORD covenants that TENANT, on paying the rental
and Performing the covenants. terms and conditions required of TENANT contained hereiri, shall
peaceably and quietly have, hold and enjoy the Leased Premises and the leasehold estate granted to
TENANT by virtue of this Agreement.
15. Assignmen This Agreement may be sold, assigned or transferred at any the by
TENANT to TENANT's parent company or arry affiliate or subsidiary of TENANT or its parent
company or to any entity with or into which TENANT is merged or consolidated, or to any entity
resulting from a reorganization of TENANT or its parent company or to any third party agreeing to
be subject to the terms hereof with a net worth in excess of Fifty Milion Dollars ($50,000,000,00).
From and after the date the Agreement has been sold, assigned or transferred by TENANT to a
third party agreeing to be subject to the terms hereof TENANT shall immediately be released from
any and all liability under this Agreement, including the payment of any rental or other sums due,
without any finiher action.
16. C0.0demnation. If notice is given to LANDLORD that the Property will be
condemned by any legally constituted public authority, then LANDLORD shall promptly notify
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TENANT of such taking or condemnation. If the whole of the Property, or such portion thereof as
will make,the Leased Premises unusable by TENANT for the purposes herein leased, is condemned
by any legally constituted public authority, then this Agreement, and the term hereby granted, shall,
at TENANT's option, cem from the time when possession thereof is taken by the public authority,
and rental shall be accounted for as between LANDLORD and TENANT as of that date.
However, nothing in this paragraph shall be construed to limit or adversely affect TENANTs right
to seek an award of compensation from any public authority that is seeking condemnation
proceeding for the taking of TENANTs leasehold interest hereunder or for the taking of
TENANT's improvements, fixtures, equipment, and personal property.
17. CAsual In the event the Leased Premises is destroyed or damaged in whole or in
part by casualty during the term of this Agreement then, at TENANT's option (exercised by notice
to LANDLORD), this Agreement may beterminated as of the date of the event or at any time
within ninety (90) days thereafter and no further rent shall be due under this Agreement, In the
event the building (excluding any damage the repair of which is required to be completed by tenants
of the budding) is damaged to the extent of twenty-five percent (25%) or more of-ihe cost of
replacement thereof (whether or not the Leased Premises are damaged) and such damage (i) occurs
during the lag two years of the term (taking into account any extensions of the term by TENANT
in accordance with the terms of this Agreement), or (ii) in the reasonable judgment of
LANDLORD, cannot reasonably be repaired or restored within a period of three hundred and
sixty-five (365) days following commencement of such repair or restoration using standard working
methods and procedures, or (iii) is not, or would not have been, covered by a standard fire and
extended coverage insurance policy, or (iv) is compensable with insurance proceeds all or a
significant portion of which is required to be paid to any mortgagee in reduction of the
indebtedness secured by any mortgage, LANDLORD shall have the right and option, in its sole
discretion,to terminate this Agreement upon the delivery of notice thereof to TENANT within
ninety (90) days afker the occurrence of such damage or destruction. If such notice is given.
LANDLORD agrees to use its reasonable efforts to permit TENANT to place temporary
transmission facilities on the Property until such time as TENANT is able to secure a replacement
transmission location far the Leased Premises, If LANDLORD elects to rebuild the Building,
LANDLORD agrees to use its reasonable efforts to permit TENANT to place temporary
transmission facilities on the Property until such time as the rebuilding is completed. In any can.
TENANT agrees that it will use its reasonable efforts to avoid interfering with Landlord's efforts to
rebuild the building or redevelop the Property.
18. Subordination LANDLORD shall obtain for the benefit of TENANT a
coinmercially reasonable Non -Disturbance Agreement from ft present and any fliture
mortgagee(s) or holder(s) of a deed of trust confirming that TENANT's tight to quiet possession of
the Leased Promises during the Initial Term and any Extended Term shall not be disturbed. as long
as TENANT is not in default under this Agreement. No such subordination shall be effiective unless
the holder of every such deed to secure debt or mortgage shall, either in the deed to secure debt or
mortgage or in a separate agreement with TENANT, agrees that in the event of a foreclosure, or
conveyance in lieu of foreclosure, of LANDLORD's interest in the Property, such holder shall
recognize and confirm the validity and existence of this Agreement and the rights of,TENANT
hereunder, and this Agreement shall continue in full force and efflul and TENANT shall have the
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right to continue its use and occupancy of the Leased Premises inaccordance with the provisions of
this Agreement as long as TENANT is not in default of this Agreement beyond applicable notice
and cure period&. TENANT shall execute in a timely manner whatever instruments may reasonably
be required to evidence the provisions of this paragraph. In the event the Property is encumbered
by a deed to secure debt or mortgage on the Commencement Date, LANDLORD, no later than
thirty (30) days after the Commencement Date, shall obtain and fumish to TENANT a ' non -
disturbance agreement in recordable form from the holder of each deed to secure debt or mortgage-
19. Title Insurance. TENANT, at TENANT's option, may obtain tide insurance on its
leasehold interest in the Property� LANDLORD shall cooperate with TENANT's effi)rts to obtain
title insurance by executing documents or obtaining requested documentation as required by the
title insurance company. If LANDLORD fails to provide requested documentation within thirty
(30) days of TENANTs request; or fails to provide any non -disturbance agreement required in the
preceding paragraph,of this Agreement, TENANT, at TENANTs option, may withhold and accrue
the monthly rental until such time as all such documentation is received by TENANT.
20. Hazardous Substances. LANDLORD warrant% represents, and agrees that neither
the LANDLORD nor, to the best of LANDLORD's knowledge. any third party has used,
generated, stored, or disposed of any Hazardous Materials in, on, or under the,Leased Premises,
Property and Surrounding Property. "Hazardous kfaterials" shall mean petroleum or any
petroleum product, asbestos, and any other substance, chemical, or waste that is identified as
hazardous, toxic, or dangerous in any applicable federal, state, or local law, rule, regulation, order
or ordinance. TENANT shall, indemnif�6 defend and hold LANDLORD harmless from any and all
claims, damages, fines� judgements, penalties, costs, liabilities or losses (including, without
limitation, any and all sums paid for settlement of claims, attorneys' fees and consultants' and
experts' fees) from the presence or release of any Hazardous Materials on the Leased Premises if
caused by TENANT or persons acting under TENANT. LANDLORD shall indemnify, and defend
any breach of LANDLORD's representations and warranty set forth above and hold TENANT
harmless from any and all claims, damages, fines, judgements, penalties, costs, liabilities or losses
(including, without limitation, any and all sums paid for settlement of claims, attorneys' fees and
consultants' and experts' fees) from the presence or release of any Hazardous Materials on
LANDLORD's Property or Surrounding Property unless caused by TENANT or persons acting
under TENANT.
21. Default and Onnortunity to Cure
(a) If TENANT should fail to pay any rental or other amounts payable under
this Agreement when due, or if TENANT should fail to perform any other of the covenants, terms,
or conditions of this Agreement, prior to exercising any rights or remedies against TENANT on
account thereof, LANDLORD shall first provide TENANT with written notice specifying the
nature of the failure and,provide TENANT with a fifteen (15) day period to cure such fitilure (if the
failure is a failure to pay rental or any other sum of money under this Agreement) or a, sixty (60)
day period to diligently cure such fitilure (if the fWiure is a failure to pelfornt any other covenant,
term, or condition of this Agreement). if the failure is not a failure to pay rental or any other sum
of money hereunder but is not capable of being cured within a sixty (60) day period, TENANT
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shall be afforded a reasonable period of time to cure the failure provided that TENANT promptly
commences curing the failure after the notice and prosecutes the cure to completion with due
diligence.
(b) In the event that LANDLORD is in default of its obligations under this
Agreement and such default continues for thirty (30) days after written notice from TENANT,
TENANT, may at its option and in any addition to arty other right or remedy available hereunder,
or at law or equity incur reasonable expenses necessary to perform the obligation of LANDLORD
specified in such notice, and any amount paid by TENANT in so doing shall be deemed paid for the
account of LANDLORD, and LANDLORD agrees to reimburse TENANT therefor and TENANT
may set off from rent or other amounts due hereunder any reasonable amount expended by
TENANT as a result of such deWt.
22. NWces Except as otherwise provided here4 any notices or demands which are
required by law or provided under the terms of this Agreement shall be given or made by
LANDLORD or TENANT in writing and shall be given by hand delivery, telegram, or other similar
communication or sent via facsi'le confirmed by an original hard copy or by certified or registered
maiL or by a national overniglit receipted delivery services,#;hich provides signed acknowledgments
of receipt (including Federal Express� UPS, Finery, Purolator, DHL, Airborne and other similar
couriers delivery services) and addressed to the respeciive parties set forth below. Such notices
shall be deemed to have been given in the caw of telegrams or similar communications when sent;
in the case of certified or registered mail when deposited in the United States mail with postage
prepaid, and in the case of overnight receipted delivery service the day the notice is deposited with
the overnight delivery service. Every notim demand, or request hereunder shall be sent to the
addresses listed below:
If to LANDLORD: Regency Island Dunes Association, Inc.
8640 S. Ocean Drive
Jensen Beach, FL 34957
Attn: Property Manager
If to TENANT: Cingular Wireless
Mail Code GAN02
6 100 Atlantic Boulevard
Norcross, GA 30071
Attn: Network Real Estate Administration
With a copy to: Cingular Wireless
Site: Hutchinson Island
5201 Congress Avenue
Boca Raton, FL 33487
Attn: Manager, Real Estate & Construction - Network
And: Cingular Wireless LLC
5565 Glenridge Connector
Suite 1700
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Atlanta, GA 30342
Attn: Legal Department
Rejection or refusal to accept delivery of any notice, or the inability to deliver any notice because of
a changed address of which no notice was given, shall be deemed to be receipt of any such notice.
23. TIrMination.
(a) 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 LANDLORD and a lump sum payment to
LANDLORD in an amount equal to twenty (24) months rent or the total of the remaining months
of the then current term, whichever is less (the "Terrnination Fee'), which Termination Fee shall be
due and *able upon TENANT's removal of all of its equipment pursuant to Paragraph 24 below.
The rental rate shall be computed at the rate that is in effect at the time of termination and shall be
payable up, until all of TENANT's equipment is removed from the Leased Pren-Ases pursuant to
Paragraph 24 below. At termination, TENANT shall execute upon the request of the LANDLORD
a written cancellation of the Agreement vacating the Leased Premises in recordable form and
TENANT shall have no other further obligations, other than TENANT's obligation to remove its
property as hereinafter provided.
(b) In addition to and not in limitation of any other provisions of this
Agreement, TENANT shall have the right, exercisable by at least ten (10) days prior written notice
thereof to LANDLORD, to terminate this Agreement upon occurrence of one or more of the
fbIlowing events:
(i) if LANDLORD shall violate or breach, or shall fail fully and
completely to observe, keep, satisf5� perform and comply with, any agreement term,
representation, warranty, covenant, and shall not cure such violation, breach or failure within thirty
(30) days after TENANT gives LANDLORD written notice thereo� or, if such failure shall be
incapable of cure within thirty (30) days, if LANDLORD shall not commence to cure such failure
within such thirty (30) day period and continuously prosecute the performance of the same to
completion with due diligence-., or
(ii) the commencement by LANDLORD of a voluntary case under the
federal bankruptcy laws, as now constituted or hereafter amended, or the consent by LANDLORD
to the appointment of a receiver, liquidator, assignee, trustee, custodim% (or other aitnilar official)
of any substantial part of the Property of LANDLORD, or to the taking of possession of any such
Property by any such functionary or the making of an any assignment fbr the benefit of creditors by
LANDLORD; or
(iii) pursuant to the term of Paragraph 18, "Subordination."
24. gMgyal ar 191mvements, Titleto a improvements constructed or instalkd by
TENANT on the Leased Premises shall remain with TENANT, and all improvements constructed
16
or installed by TENANT shall at all times be and remain the property of TENANT, regardless of
whether such improvements are attached or affixed to the Property. Furtbemore all improvements
constructed or installed by TENANT shall be removable at the expiration or earlier ternination of
this Agreement or any renewal or extension thereof, provided TENANT shall not at such time be in
default under any covenant or agreement contained in this Agreement. TENANT, upon
termination of this Agreement, shall, within ninety (90) days, remove all improvernerim fixtures,
and personal property constructed or installed on the Leased Premises by TENANT and restore the
Leased Premises to substantially the same condition as received, reasonable wear and tear and
damage by insured casualty excepted. TENANT shall not be required to remove any foundations,
driveways, or underground cables or wires. If such removal causes TENANT to remain an the
Leased Premises 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 is completed.
madet
25, Radon Ga . In accordance with Florida Law, the following statement is hereby
"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."
26. Miscellaneous. This Agreement cannot be modified except by a written
modification executed by LANDLORD and TENANT in the same manner as this Agreement is
executed. The headings, captions and numbers in this Agreement are solely for convenience and
shall not. be considered in construing or interpreting any provision in this Agreement. Wherever
appropriate in this Agreement, personal pronouns shall be deemed to include other genders and the
singular to include the plural, if applicable. This Agreement contains all agreemenM promises and
understandings between the LANDLORD and TENANT, and no verbal or oral agreements,
promisiM statements, assertions or representations by LANDLORD or TENANT " any
employees� agents, contractors or other representatives of either, shall be binding upon
LANDLORD or TENANT.
27. -Contractual Limitations Period No action or proceeding may be maintained or
brought against a party to this Agreement unless such action or proceeding is commenced within
twenty-four (24) months after the cause of action accrued unless such cause of aeflon could not
have reasonably been discovered by such party.
28. RF Em!Mions.
(a) TENANT shall, at its sole cost and expense, prepare and deliver to
LANDLORD or cause to be prepared and delivered to LANDLORD, an evaluation of the radio
fi-equency energy emissions from the Leased Premises as required by the FCC, taking into
consideration the addition of TENANT's Communications Facility. In the event the TENANT
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determines that such proposed Communications Facility would cause the Leased Premises not to
comply with the radio frequency exposure limits (the "RF Exposure Mmite') promulgated under 47
C.F.R. §1.1307, el. seq. (1997, as amended from time to time) ("RF Emissions Regulatione'),*
LANDLORD, upon notice to TENANT, may modify or cause modifications of equipment or
conditions at the Leased Premises in order to permit location of TENANT's Communications
Facility at the Leased Premism to be in compliance with the RF Emissions Regulations. If
LANDLORD elects not to effect such modifications, it shall so notify TENANT. and TENANT
shall thereafter have the right to terminate the Lease by notice to the LANDLORD. TENANT
shall have the right to place electromagnetic energy warning signs on or about the Leased Premises
and proximate to the Communications Facility and to restrict access to the Communications Facility
so long as such warning signs are in compliance with applicable law.
(b) LANDLORD shall require each of its licensees. tenants or other users
(collectively "Users!) to operate their respective equipment in compliance with RF Emission
Resulations, LANDLORD agrees that it shall, and shall require potential or actual Users that
locate and operate transmitting equipment on the Property to agree that if the Leased Premises fails
to meet the RF Emissions Regulatiom or would fkil by the addition or modification of the
equipment at the Property, to comply with the RF Exposure Limits at any time during the term of
this Agreement, then the existing or prospective User at the Property causing or who would cause
such failure, shalt promptly take commercially reasonable steps to bring the Leased Premises into
compliance, including, preparation and filing of any required Environmental Assessments ("EAs")
and modifications of its equipment.
29. Sec,11rity Intermit It is the express intent of the parties to this Agreement that
LANDLORD have no security interest whatsoever in any personal property of TENANT, and, to
the extent that any applicable statute, code, or law grants LANDLORD such an interest,
LANDLORD does hereby expressly waive any rights thereto.
30. genngentation. LANDLORD and TENANT warrant to each other the they were
represented in this transaction respectively by Wireless Facilities Inc. f'FENANTI Broker") and
NONE CLANDLORWs Broker") (collectively. "Broker") and by no other real estate brokerage
firms. Additionally, the parties warrant to each other that they will each hold the other harmless
from and indemnify each other against claims made by any broker (except Broker) claiming to have
represented the indemnifying party in this transaction.
31. Estang CertlrjML& After the commencement of the term of�this Agreernent�
from time to time, within fifteen (15) days after written request by either LANDLORD or
TENMT; each shall provide the requesting party or to a mortgagee or prospective purchaser, a
certificate stating that: (i) LANDLORD or TENANT has entered into occupancy of the space in
accords= with the provisions of this Agreement; (ii) that this Agreamt is in fall fbrce and effect;
(iii) that LANDLORD or TENANT has perfbrmed the oovenants� agreements or conditions
required of LANDLORD or TENANT if such be the case (and if such not be the case, then
LANDLORD or TENANT shall list those covenants, agreements or conditions not so performed);
and (iv) any other information reasonably requested by LANDLORD, TENANT or mortgagee or
prospective purchaser.
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32. Gaverninii Law This Agreement shall be governed and interpreted by, and
construed in accordance with, the laws of the county and state in which the Leased Premises is
located.
33. Attorney's Fees. In any proceeding which either pony may prosecute to enforce its
rights hereunder, the unsuccessflil party shall pay all costs incurred by the prevailing party,
including reasonable attonveys! fees.
34. Memorandum/Short Form of Agreement At the request of TENANT,
LANDLORD agrees to execute a memorandum or short form of this Agreement, in recordable
form, setting fbrth a description of the Leased Premises, the term of this Agreement and other
information desired by TENANT for the purpose of giving public notice thereof to third parties, as
set forth as Exhibit "C" attached hereto.
35. ConrydentiallIL. LANDLORD agrees not to discuss publicly, advertise. nor publish
in any newspaper, journal, periodical, magazine, or other form of mass media, the terms or
conditions of this Agreement. Doing so shall constitute a default tinder this Agreement It is
agreed that the parties to this Agreement will not discuss the terms and conditions contained herein
with any unrelated third parties.
36., Authority to Execute. The individuals executing this Agreement on behalf of
LANDLORD and TENANT personally warrant that they have full authority to execute this
Agreement on behalf of the party for whom they am acting herein.
37. Binding Effect. This Agreement shall Mend to and bind the heirs, personal
representatives, successors� and assigns of LANDLORD and TENANT and shall Constitute
covenants running with the land.
38. §VLMbilL orceability of a particular provision of this
q, The invalidity or unerif
Agreement shall not affect the other provisions hereof. and the Agreement shall be construed in all
respects as if such invalid or unenforceable provisions were omitted. The provisions of this
Agreement are severable and the invalidity of any one or more of such provisions or any part
thereof does not affiect or limit the eirlbrceability of the remaining provisions or parts thereof of this
Agreement.
39. Cquatemarts. This Agreement may be executed in several counterparts, each of
which shall constitute an original and all of which shall constitute the same Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their
respective seals.
19
WPBIVMALM133M.4
2BQ5MUn11F4=
Signed, seated and delivered in the
Presence of
,aJ,7--;A
�vature
Print Name
Print N&e
STATEOF VA",--0j
LANDLORD:
REGENCY ISLAND DUNES ASSOCIATION,
INC.,
a Florida non-profit corporation
By.
Name -
Title: 3__tre dent
:ss
(Seal)
COUNTY O���� :
Th strument was acknowledged before me thisAr day of
A_ Floida
2003, by Z2140�1n%&ws President of Regency Island Dunes, Alattioin �a
non-profit dorporation, oAehalf of the corporation. Hejshe is(vj personally known tome OR( )has
produced as identilication.
(Signature of Notary Public)
(Type Name of Notary Public)
OFRMALNOTA State of Florida
(Seal) P&CO, PATRMU My Commission Expires.
00MMOMNLIM
cclom
NVOMUSSMOFM
of FMI"=
41
[SIGNATURES AND NOTARY ACKNOWLEDGMENT CONTINUED ON FOLLOWING
PAGEI
reTil
WPBIMEMZM13MA
254OMWA =I Irfi'M
Signed, sealed and delivered in the
Presence of.
Signature N. ABHAISINGH
Print Name
Print Name
STATE OF FLORIDA
:ss
COUNTY OF PQXA'n 11 *%0-1
a
TENANT:
BELLSOUTH MOBILITY LLC,
a Georgia limited liability company. d/b/a
Cingular Wireless
Bv:
Print Name: —WLLIAM SCHUTTS
Title: EXEC.01RECTOR-NErWORK
(seal)
I the undersigned a5thority, a Notary Public in and for said County, in said State, hereby certify
this -1�� day of ecpmLar 2003 that Vdktaam St60s as
'E-YeG -.btr!Lt�w- Ke)443w%-. of BellSouth Mobility LLC, a Georgia limitedfiability
company, d/b/a Cingular Wireless, has signed the foregoing instrument and, acknowledged before me
ort this date that, being informed of the contents of the foregoing instrument� imMe, vAth full authority,
executed the same voluntarily for and as the act of said entity. Hd9he is ( unwsonally known to me
OR ( ) has produced as identification.
Aft E BMMMK
* cwwbwo mmm
BOM FftnmW 20, 2W6
(seal)
WRIMALMIM570.4
284MOMwIVY&M
21
Public)
(Type Name of Notary Public)
State of Florida
MY Commission Expires