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HomeMy WebLinkAboutPrimeco Personal Consent and Subordination Agreement -2001 07 09~. t• '~. ~ CONSENT AND SUBORDINATION AGREEMENT ~~ Cj THTR AC'TREEMENT ("A~reement"1 dated ~ ~ ~ , 2001 is made by and between THE CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation ("City"), and PRIMECO PERSONAL COMMUNICATIONS, LIMITED PARTNERSHIP, a Delaware limited partnership, d/b/a VERIZON WIRELESS ("Verizon Wireless") and provides as follows: RECITALS: City is the owner of certain real property (the "Premises") located at 1126 East S.R. 434, Winter Springs, Florida, and more particularly described in Exhibit "A", which is attached hereto and made a part hereof. City entered into a Site Agreement for Land with APT Tampa/Orlando, Inc. ("VoiceStream"), dated December 12, 1997 ("the Prime Lease"), under which VoiceStream has undertaken the construction and operation of telecommunications tower. VoiceStream and Verizon Wireless previously entered into a master agreement pursuant to which the Premises have been designated as a site on which Verizon Wireless desires to enter into a site Co-Location Agreement. Under the terms of the Prime Lease, the City must give its consent, not to be unreasonably withheld, to the proposed Co-Location Agreement between VoiceStream and Verizon Wireless. As a condition of its consent to the Co-Location Agreement contemplated by Verizon Wireless and VoiceStream, City has requested that Verizon Wireless agree to be bound by the obligations arising under the Prime Lease. AGREEMENT: NOW, THEREFORE, in consideration of their respective covenants herein made, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Incorporation of Recitals. The foregoing recitals are true and correct and are hereby incorporated into this Agreement as if specifically set forth herein. 2. Consent. The City hereby consents to Verizon Wireless co-locating their communications and related facilities on the Tower and on the Leased Premises. In furtherance of consenting to the co-location, the City also consents to Verizon Wireless entering into the Sublease with VoiceStream for the use of a portion of the Leased Property ("Subleased Parcel") and the Tower. The Subleased Parcel is legally described on Exhibit "B," which is attached hereto and incorporated herein by this reference. The use of the Subleased Parcel shall be limited to operating and maintaining communications equipment and related facilities in order to effectuate the co-location. City also consents to Verizon Wireless' use of the non-exclusive utility easements and non-exclusive ingress and egress easements to the Leased Property. These easements were granted to VoiceStream by the City and are legally described under the Site Agreement. The easement legal descriptions are attached hereto as Exhibit "C" and incorporated herein by this reference. Verizon Wireless agrees to fully comply with the terms and conditions of the aforementioned easements and further agrees that Verizon Wireless shall not in any way overburden the easements or interfere with the City's and any other authorized user's right to use the easements. 3. Term. The City acknowledges and agrees that under the terms of the Sublease, Verizon Wireless shall have the right to sublease the Subleased Parcel and co- locate on the Tower for an initial term of five (5) years with four (4) renewal term(s) of five (5) years. This Agreement shall automatically renew unless: (i) Verizon Wireless has provided the City written notice of its desire not to elect its option under the Sublease prior to the expiration of the existing Term or Renewal Option of the Sublease, as the case maybe; (ii) Verizon Wireless is in breach of this Agreement, beyond any applicable cure period, in which case, this Agreement may only be renewed if the City agrees to the renewal in writing and Verizon Wireless cures the breach; or (iii) Verizon Wireless is in breach of the Sublease beyond any applicable cure period, in which case, the Agreement may only be renewed if the City and VoiceStream agree to the renewal in writing and Verizon Wireless cures the breach. 4. Termination of VoiceStream Site Agreement. If the Site Agreement is terminated by VoiceStream or City and Verizon Wireless desires to continue occupying and possessing the Subleased Parcel and Tower space, Verizon Wireless may do so by entering into a written lease agreement with the City which shall require direct payment of rental proceeds to the City. Any such lease shall be in substantially in the same form, and contain the same terms and conditions as the Prime Lease. 5. Subordination to Prime Lease. Verizon Wireless, in its capacity as sublessee under the Prime Lease, agrees that its interest in the Co-Location Agreement between Verizon Wireless and VoiceStream shall be subordinate and inferior to the Prime Lease. Verizon Wireless agrees not to violate any term or condition contained in the Prime Lease, nor to create or suffer any event or condition which would constitute any breach or event of default under the Prime Lease, to the extent that such agreement creates no additional burdens or obligations, monetary or otherwise, beyond those created by the Co-Location Agreement. The City agrees that so long as Verizon Wireless is in compliance with the terms of this Consent and Subordination Agreement, the Co- 2 Location Agreement, and the Prime Lease (but only to the extent contemplated hereunder), Verizon Wireless shall continue to have and enjoy the uninterrupted and quiet possession of the Premises as if it had been the original party to the Prime Lease. 6. Assumption of Obligations of Prime Lease. In the event that Verizon Wireless should succeed to VoiceStream's interest under the Prime Lease, or in the Premises or any improvements thereon, Verizon Wireless assumes and agrees to be bound by all the terms and conditions thereof. In such event, Verizon Wireless shall continue to have and enjoy the uninterrupted and quiet possession of the Premises as if it had been the original party to the Prime Lease. 7. Indemnification and Hold Harmless. Verizon Wireless shall indemnify and hold harmless the City and its employees, officers, and attorneys, from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability to the person or property (including reasonable attorneys' fees through any and all administrative, trial, post judgment and appellate proceedings), directly or indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from Verizon Wireless and its employee's, agent's or contractor's use and occupancy of the Subleased Parcel, Tower, and utility and ingress and egress easements. This indemnification shall survive the expiration or termination of this Agreement. The indemnification provided above shall obligate Verizon Wireless to defend at its own expense or to provide for such defense, at the sole option of the City, as the case maybe, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City or its employees, officers, and attorneys which may result from Verizon Wireless' and its employee's, agent's, and contractor's use and occupancy of the Subleased Parcel, Tower, and utility and ingress and egress easements. 8. Intended Beneficiary. It is expressly intended that the assumption and compliance provisions agreed to by Verizon Wireless in Paragraphs 5 and 6 above shall run directly to, and for the benefit of, the City. 9. Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state and federal law. 10. Self-Operative Provisions. The provisions of Paragraphs 4 and 5 hereof shall be effective and self-operative without the execution of any further instruments on the part of any of the parties hereto. 3 11. Representations. Each of the parties hereto represents and warrants that it has full right and authority to enter into this Agreement; and that no other consents are required in connection herewith. 10. Miscellaneous. (a) This Agreement shall bind and inure to the benefit of the parties and their respective successors and assigns; (b) this Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument; (c) notices required hereunder shall be in writing and sent by U.S. mail, postage prepaid, to the address of the party set forth below; (d) this Agreement shall be governed and construed in accordance with the laws of the State of Florida. IN WITNESS WHEREOF, the parties hereto have executed and d¢lye~red this Agreement effective as of the date set forth above. WITNESSES: ~.,~u-t.~.- G ~ ~ 1~ P 'nt N e P ~nt e P~ril~t QName ~i,- ~ Hers r Print 1`~me CITY OF W PRIN •- a Florida muni ~ al co or n • _ ` }- BY: _ _ Ti e: Mayor -~ - • Date: July 13, 2001 ' V ~`" Attest T1tle: City C rk Date: July 13, 2001 PRIMECO PERSONAL COMMUNICATIONS, Limited Partnership d/b/a Verizon Wireless F~ ~7M Print Name ~ BY: T i ~ ~ ~ , Howard H. Bower ~.,,~ ,' L~Lr~~~,.~ ~r~V`~ Area Vice P esid t -Network South Area ;,~ Date: ~~j Print Name 4 Exhibit A Premises Description Att. THAT TRACT OR PARCEL Of L/Wp L1ANC IN SEC110N 36. TOWNSHIP 20 SOUTH RANCE 30 EAST. SEIMNOIE COUNTY. FLORIDA. BEINC A PORTION Of WTTREI.L PARK ACCORDING T~0 Tt1E PV1T THEREOF AS REOORDED aH P'U1T 9001( 71. PACE 44. OfF1CU1t RECORDS Of SEIAINOLE COl1NTY. fL ANO BEING MORE PAitTiClJ~/1RLY OESCRIeED AS fOI,L~OMS: COfrII~AEI~ICINC AT THE NORTHWfSt CORNER Of SMO WTTREL PARK; THENCE SOUTH 1Q38'10' HEST A 015TANCE Of 137.00 FEET TO A POINT; THENCE SOUTH T1~t)i'S0' FAST A DISTANCE Of X4.00 FEET TO THE POINT OF BEpNNNVC; THENCE NORTH id~d'10' EAST A DISTANCE Of 30.00 fEET TO A P01NT; THENCE SOUTH 7i~Di'S~ EAST A DISTANCE of 50.00 FEET TO A POINT; THENCE SOUTH 1a'S8'10' HEST A DISTANCE Of 50.00 f'EET TO A POINT; THENCE NORTH 71'01'50' WEST A DISTANCE Of 50.00 FEET TO 1HE POINT Of eEpNNNrG. CONTAMIINC ~.SOO SQUARE FEET OR 0.057 ACRES Ir10RE OR LESS. fYItli1N6L 7FIWOORi ANNA LL ~'CP lLOOOID/E'A! MAMIIC.G{f r r r it P.~. 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