HomeMy WebLinkAbout2007 08 27 Public Hearing 500.1 Conditional Use Cell Tower
CITY COMMISSION
AGENDA
ITEM 500.1
Consent
Informational
Public Hearing X
Regular
August 27,2007
Meeting
MGR.
/DEPT. ~ -
REQUEST: The Community Development Department requests the City Commission
review Vertex Development, LLC's request for a Conditional Use to allow a
telecommunications tower, on a 70' x 70' lease site, at the Tuscawilla Country Club (1500
Winter Springs Boulevard), in the Tuscawilla Planned Unit Development (PUD).
Community Development staff requests the City Commission remove
this item from the table and review the agenda item as presented on
August 13,2007 and August 20,2007.
y'
CITY COMMISSION
AGENDA
ITEM
500.1
Consent
Informational
Public Hearing X
Regular
!
August ~3, 2007/S(~901
Meetmg
r /Y
i'r! MGR. . /DEPT.
REQUEST: The Community Development Department requests the City Commission
review Vertex Development, LLC's request for a Conditional Use to allow a
telecommunications tower, on a 70' x 70' lease site, at the Tuscawilla Country Club
(1500 Winter Springs Boulevard), in the Tuscawilla Planned Unit Development (PUD).
PURPOSE: The purpose of this agenda item is for the City Commission to consider
the appropriateness of the proposed 150' tall monopole telecommunications tower (cell
tower) and its associated site improvements, pursuant to the criteria set forth in Section
20-33 and Section 20-451 of the City's Code of Ordinances.
ZONING AND LAND USE DESIGNATION:
Zoning: PUD
Future Land Use Designation: Recreation and Open Space
Conditional Use: Pending
APPLICABLE LAW AND PUBLIC POLICY:
Section 9-600 through 9-606 of the City's Code of Ordinances
Section 20-33. Conditional Uses
Section 20-451, as amended by Ordinance No. 2006-12, Telecommunication Towers
Settlement Agreement and Amended Settlement Agreement No.1
The Telecommunications Act of 1996
Section 365.172 Florida Statutes
CONSIDERATIONS:
1. There may be a need to improve cell phone service in the Tuscawilla PUD. The
applicant proposes to locate a 150' tall monopole tower on a 50' x 50' fenced compound
on a 70' x 70' lease site at the 140 + acre Tuscawilla Country Club site within the
Tuscawilla Planned Unit Development {PUD.
2. The proposed site is located near the southwestern end ofthe existing driving range.
August 13, 2007
Public Hearing 500. I
Page 2 of8
3. The applicant must provide evidence that the proposed structure meets the criteria set
forth in Subsection 20-451 (as amended by Ordinance 2006-12) ofthe City Code as well
as the conditional use criteria in Section 20-33. The attached application packet includes
the applicant's responses to the Section 20-33 criteria and Section 20-451 criteria.
4. In addition, the applicant must provide evidence that the proposal meets the
requirements of Section 9-600 through 9-606 of the City's Code of Ordinances (Aesthetic
Review Standards). The aesthetic review is a separate agenda item.
5. Section 20-33 sets forth the criteria and process for a conditional use.
6. Section 20-451, as amended by Ordinance No. 2006-12, sets forth a 3 tiered zoning
system for the location of all proposed telecommunication towers within the City.
The first tier allows telecommunications towers as a permitted use at 4 specific, mapped
sites within the City (the City's wastewater treatment plant #1/west plant, the Seminole
County School Board Consolidated Services Facility - a.k.a. "bus barn, the City's west
effluent disposal sites - located at the SE quadrant of Site 16, east of the percolation
ponds, and the City Hall site).
The second tier allows telecommunication towers to be considered for a conditional use
at the following sites:
a. On property owned by the City of Winter Springs that is designated
public/semi-public on the City's future land use map; or
b, On an existing commercial or industrial building, not located or incorporated
within a single family residential area, provided the tower does not extend
more than ten (10') feet above the roof line of the building and the tower does
not exceed the applicable maximum height limitation in the City Code; or
c. Within (enclosed) an existing church steeple or other type of existing structure
which exists for a primary purpose other than for personal wireless services.
It is the intent of this subsection to take advantage of existing structures for
providing personal wireless services and not to allow the construction of new
structures for said purposes; or
d. Upon existing sports lighting structures, utility structures, and water tanks,
provided the structure is not located within a single family area, the tower
does not extend more than ten (10') feet above the top of the existing
structure, and the tower does not exceed the applicable maximum height
limitation in the City Code; or
e. On the site of the proposed Fire Station #3 which is to be located on the south
side ofS.R. 434 in Tuscawilla Tract 15, Parcel 3 (approximately 2300feet
west of Vistawilla Drive). Said tower, if approved, shall not exceed one
hundred twenty (120') feet.
The third tier allows a request a for conditional use for a site not listed in tier one or
tier two, if the applicant presents competent, substantial evidence which
demonstrates that the first two tiers are not available or technically feasible for
locating a tower. A telecommunication tower shall be considered for a conditional
use on the following preferred sites, which are listed in the order of preference.
These preferred sites shall be considered in the sequence listed below and the
August 13,2007
Public Hearing 500.1
Page 3 of8
applicant shall be required to demonstrate, based on technical feasibility, that a more
preferred site is not available or suitable before requesting a lesser preferred site:
a. Property which has a future land use designation of Industrial.
b. Property which has afuture land use designation of Mixed Use and is part of
a Development of Regional Impact.
c. Densely wooded or concealed areas limited to a golf course and areas of
property which have been designated conservation by perpetual easement and
on the city's future land use map. If a new telecommunication tOlVer is placed
within trees or wooded areas. the tOlVer shall be concealed hy the su.rrou.nding
trees or wooded areas to the maximum extent possible to minimize the
visibility of the tower from any road, occupied building, and fairway if located
on a golf course. Trees can be existing on the subject property or installed to
meet the requirements of this subsection, or they can be a combination of
both.
d. Property which has afuture land use designation of Greene way Interchange
District.
All other locations shall be prohibited. Further, the construction of a tower for
speculative purposes shall be prohibited. For purposes of this code, it shall be deemed
primae facie evidence that a tower is being built for speculative purposes if the applicant
cannot provide with the application written evidence that one or more carriers have
committed to locate on the proposed tower within three (3) months of the construction of
the tower for a period of at least five (5) years.
7. Pursuant to Section 20-451, all telecommunication towers must comply with the
following development standards:
(a) They shall be located as far as technically feasible from properties that are
designated residential on the City's Future Land Use and Zoning maps and shall
comply with all other applicable distance standards which are set forth in the City
Code.
The applicant must substantiate, that the proposed tower is as far as is
technically feasible from properties designated residential on the City's FLU
and zoning maps. The request appears to comply with the other applicable
distance standards (e.g. the lease site appears to be at least 200' from the
nearest residential properties along Augusta National Boulevard and E.
Pebble Beach Circle, in Country Club Village). The minimum distance from
residential properties is 125% of the height of the proposed tower. The 200'
distance represents 134% of the proposed tower height.
(b) To the extent feasible, the lowest height technology must be incorporated
including, but not limited to, micro-cell technology.
The applicant must substantiate that the proposed tower and future co-
locators will incorporate the lowest height technology, including, but not
limited to, micro-cell technology. The applicant has stated that the proposed
height is the minimum height required to accommodate seven carriers (co-
locators). In addition, the 150' monopole is proposed to be located among
August 13,2007
Public Hearing 500.1
Page 4 of8
mature vegetation which might have an impact on the proposed tower height.
Staff has included as a part of this document, a report from Arthur K. Peters
wherein he details some alternate technologies, including the use of multiple,
low-height towers (as in Medina, Washington) and the use of stealth and
disguise facilities. Other low height technologies, such as Distributed
Antennae Systems (DAS) may be available and should be considered before
approving a 150' high monopole.
(c) Tower height must be the minimum necessary to serve the applicant's needs (not
to exceed a total height of 165' or a height calculated based on a tower setback of
125 percent of the tower height measured at grade from the base ofthe tower to
the closest residentially zoned property line.
As stated in item # 7 above, the site appears to be approximately 200' from
the adjacent Country Club Village residential subdivision. As also
referenced above, the number of co-locators was a justification given by the
applicant for the 150' tower height. In addition, staff noted the nearby dense
tree canopy as being a potential influence on the tower height. No technical
data was provided by the applicant which addressed the use of some of the
more effective stealth technologies. As previously stated, other low height
technologies may be available and applicable and should be considered
before approving a 150' high monopole.
(d) The most effective stealth technology (including stealth technology) must be
incorporated.
The use of a 150' tall monopole does not appear to represent use of the most
effective stealth technology. However, staff also recognizes that there are
numerous other factors, including the number of co-locators and the existing
tree canopies on adjacent parcels, which influence the design of the proposed
facility. The antennae and all associated electrical wiring and connections
shall be internally-mounted/concealed rather than close-mounted. Further,
other stealth technologies should be employed to the maximum extent
feasible.
(e) The location must be the least visually intrusive in the community.
To address this requirement, the applicant has provided a visual impact test
(balloon test) which was performed on March 7, 2007. This documentation
includes photographs of the balloon taken from various locations depicted on
a map. This test is attached as part of this report. This test provides
documentation of the visual impact of the proposed 150' tall monopole but
does not address the reduction of visual impacts on the community attainable
through the use of lowest height technologies.
(f) The proposed tower shall be located in an area where the visual impact on the
community is minimized to the greatest extent possible.
As stated above in item e, the applicant has provided the balloon test to
document/address the visual intrusion into the neighboring communities.
Again, there has been no consideration of the possible mitigation levels
August 13,2007
Public Hearing 500.1
Page 5 of8
attainable through the use of lowest height technologies and ancillary wiring
and connections.
(g) Antennas must be close mounted or concealed (however concealment shall be
encouraged and preferred to the greatest extent practicable).
Staff requires concealed antennae. The aesthetic review is the subject of a
separate agenda item.
Like all other developments of structures and buildings within the City, Ordinance 2006-
12 requires all applications for location of a telecommunications tower to comply with
Sections 9-600 through 9-606 of the City's Code of Ordinances. These sections address
the minimum community appearance and aesthetic review standards of the application.
OTHER FACTORS:
Another cell tower site was proposed, but has been withdrawn, on the City's East Waste
Reclamation Facility site located at 1560 Winter Springs Boulevard. This site is a Tier
Two site, as defined by Ordinance 2006-12. Anyone proposing a Tier Three site must
present to the City competent substantial evidence which demonstrates that Tier
One and Tier Two locations are not available or technically feasible for the location
of a tower. The Tier Three site could be considered as part of the employment oflowest
height technology wherein multiple sites would be required to provide adequate wireless
service to the area.
The proposed telecommunication tower site is subject to a tmal order approving
settlement agreement and amended settlement agreement#l, recorded in Official
Records Book 3102, page 1356, as amended by the second amendment to settlement
agreement, recorded in the ORB 3146, page 0454. Said agreements state that the
subject property shall be developed as single family, detached residences. The
proposed cell tower is inconsistent with the agreements. An amendment to the
settlement agreements would be required to permit a cell tower on the subject
property. The applicant and the Tuscawilla Country Club have not proposed any
amendments to the settlement agreement. Therefore, the City Commission is not in
a position to ascertain whether an amendment to this settlement agreement is
acceptable at this time.
FINDINGS:
1. The parent tract contains a golf course and has a Recreation and Open Space FLU
designation.
2. Any approval of a telecommunications tower on the proposed site will require an
amendment to the applicable settlement agreements, as referenced above.
3. Pursuant to Section 20-33 ofthe City Code, "all conditional use recommendations and
fmal decisions shall be based on the following criteria to the extent applicable:
August 13,2007
Public Hearing 500.1
Page 60f8
a) Whether the applicant has demonstrated the conditional use, including its
proposed scale and intensity, traffic-generated characteristics, and off-site
impacts, is compatible and harmonious with adjacent land uses, and will not
adversely impact land use activities in the immediate vicinity."
The concept of harmony and compatibility, as applied to the proposed
facility, is different than for an addition to a building. The only other similar
structures in this immediate area with which this monopole can be compared
are the Transmission line power poles, which are approximately sixty (60')
feet shorter than the proposed monopole. The off-site impacts are limited to
the visual presence of the tower on surrounding residential and recreational
areas. The use of lower height technology would lessen this impact.
b) Whether the applicant has demonstrated the size and shape of the site,
the proposed access and internal circulation, and the design enhancements to be
adequate to accommodate the proposed scale and intensity of the conditional use
requested. The site shall be of sufficient size to accommodate design amenities
such as screening, buffers, landscaping, open space, off-street parking, and similar
site plan improvements needed to mitigate against potential adverse impacts of
the proposed use."
The application for this facility specifies a 50' x 50' fenced compound on a
70' X 70' overall site, which includes a 10' landscape buffer. Staff
understands that a slight modification may be necessary once the exact
location is established. Details regarding access, power supply feeds, and the
source of power must be addressed as part of the fmal engineering for the
proposed tower.
c) Whether the proposed use will have an adverse impact on the local
economy, including governmental fiscal impact, employment, and property
values. "
Theoretically, the proposed facility could have a positive impact on the local
economy because it could enhance wireless communications in the Tuscawilla
area. If the applicant employed concealment, low height, stealth
technologies, impact on property values could be negligible.
d) Whether the proposed use will have an adverse impact on the natural
environment, including air, water, and noise pollution, vegetation and wildlife,
open space, noxious and desirable vegetation, and flood hazards."
The proposed facility will not have an adverse impact on the natural
environment, subject to the applicant providing a listed species survey
indicating no adverse impacts. In addition, a surveyor statement from the
applicant documenting that the tower lease site will not encroach upon any
wetland.
August 13,2007
Public Hearing 500.1
Page 7 of8
e) Whether the proposed use will have an adverse impact on historic, scenic,
and cultural resources, including views and vistas, and loss or degradation of
cultural and historic resources."
Staff does not believe that the proposed tower will create any of these adverse
impacts except for the possibility that an adverse impact may occur to the
scenic resources of the area. The 150' height question needs to be addressed
as part of the consideration of scenic resources. At issue are the scenic vistas
and views and the potential adverse impacts to the area's scenic resources.
f) Whether the proposed use will have an adverse impact on public services,
including water, sewer, surface water management, police, fire, parks and
recreation, streets, public transportation, marina and waterways, and bicycle and
pedestrian facilities."
Staff does not believe the proposed use will create any of these adverse
impacts.
g) Whether the proposed use will have an adverse impact on housing and
social conditions, including variety of housing unit types and prices, and
neighborhood quality."
The proposed monopole should not impact social conditions and the variety
of housing types. Housing prices and neighborhood quality are potentially at
risk of being affected because of the visual presence of the proposed
monopole. The use of lowest height technology will decrease these potential
impacts.
CONDITIONS OF APPROVAL:
1. The applicant and the Tuscawilla Country Club have not proposed any
amendments to the Settlement Agreement. Therefore, the City
Commission is not in a position to ascertain whether an amendment to this
settlement agreement is acceptable at this time.
2. Provide a revised landscape plan depicting specifically what vegetation
will remain and what will be removed and an associated irrigation plan
for the new plantings
3. Provide a Listed Species Report and sufficient documentation to verify
that the proposed facility location does not encroach upon a wetland.
4. The applicant must provide credible and compelling data
documenting that the lowest height technology required to provide
personal wireless service to the Tuscawilla area has been used.
5. The applicant must provide competent substantial evidence which
demonstrates that Tier One and Tier Two locations are not available
or technically feasible for the location of a tower.
6. Amend the applicable settlement agreements to allow the installation of
a telecommunications tower on the subject parcel.
August 13,2007
Public Hearing 500.1
Page 8 of8
7. Any other conditions deemed appropriate by the City Commission to
meet the requirements of the applicable City Codes.
RECOMMENDATION:
Based upon the requirements contained in the applicable City Codes, including the
aesthetic review code (Section 9-600 through 9-606) and Section 20-451 as amended by
Ordinance 2006-12, it is questionable as to whether a 150' monopole meets the criterion
stipulated by the City for the use oflowest height technology and aesthetic compatibility
and harmony requirements under the Code.
Staff requests the City Commission consider the information presented in this staff
report, the testimony of the expert witnesses and that ofthe applicant and during the
public hearing testimony and, if the Commission is satisfied that the request is consistent
with all applicable criteria and code provisions, including whether or not the applicant
has provided competent substantial evidence which demonstrates that Tier One and Tier
Two locations are not available or technically feasible for the location of a tower, make
the recommendation they deem appropriate to the City Commission based upon the
criterion set forth in Sections 20-33 and 20-451 of the City's Code of Ordinances In
addition, the City Commission must consider the necessity of amending the applicable
settlement agreements.
The City Commission may consider the use of two or more shorter towers or the use of
concealed/stealth technology as an alternative to the one tower as proposed in this
request.
ATTACHMENTS:
A. Location Map
B. Ordinance No. 2006-12
C. Arthur K. Peters Report
D. Application package
E. City Manager Letter on Tower Height
F. Draft BOA minutes
5
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ATTACHMENT B
ORDINANCE NO. 2006-12
AN ORDINANCE OF THE CITY COMMISSION OF THE
CITY OF WINTER SPRINGS, FLORIDA, AMENDING
SECTION 20-451 OF THE CITY CODE REGARDING
TELECOMMUNICATION TOWERS AND ANTENNAS;
PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT
ORDINANCES AND RESOLUTIONS, INCORPORATION
INTO THE CODE SEVERABILITY, AND AN EFFECTIVE
DATE.
WHEREAS, the City is granted the authority, under Section 2(b), Article VITI, of the State
Constitution, to exercise any power for municipal purposes, except when expressly prohibited by
law; and
WHEREAS, the City Commission has held several public workshops and hearings regarding
the current telecommunication tower ordinance and has determined that said ordinance should be
updated to potentially allow additional locations for telecommunication towers and/or other
appropriate personal wireless service facilities in order to enhance the quality of personal wireless
services that ar~ being provided to the citizens and businesses of Winter Springs; and
WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this
Ordinance to be in the best interests ofthe public health, safety, and welfare of the citizens of Winter
Springs.
NOW, THEREFORE, THE CITY COMl\1lSSION OF THE CITY OF WINTER
SPRINGS HEREBY ORDAINS, AS FOLLOWS:
Section 1.
reference.
Recitals. The foregoing recitals are hereby incorporated herein by this
Section 2. Code Amendment. The City of Winter Springs Code, Section 20-451,
Telecommunication towers, is hereby amended as follows: (underlined type indicates additions and
strike-out type indicates deletions, while asterisks (***) indicate a deletion from this Ordinance of
text existing in Section 20-451. It is intended that the text in Section 20-451 denoted by the
asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to
adoption of this Ordinance).
City of Winter Springs
Ordinance No. 2006-12
Page 1 of 18
See. 20-451. Telecommunications towers.
1. (a) DefInitions.
Antenna shall mean a transmitting and/or receiving device used in telecommunications
that radiates or captures electromagnetic waves, including directional antennas, such as
panel and microwave dish antennas, and omni-directional antennas, such as whips,
excluding radar a.'1ter~f1as, afJ1ateur radio antef',.JlaS- CL'1d satellite earth stations.
Co-location shall mean telecommunications towers that have the potential to have three
(3) or more carrier antennas located on it.
Development review committee shall mean the city staff composed of the city manager,
land development coordinator, city engineer, public works/utilities director, community
development coordinator, building official, police chief, fIre chief.
Guyed tower shall mean a telecommunications tower that is supported, in whole or in
part, by guy wires and ground anchors.
Lattice tower shall mean a telecommunications tower that is constructed with a series
of struts forming a non-solid surface tower, without guy wires standing on and fastened
to an in-ground pier.
Microwave shall mean a dish antenna, or a dish-like antenna used to link
communication sites together by wireless transmission of voice or data.
Monopole tower shall mean a telecommunications tower consisting of a single pole or
spire self supported by a permanent foundation, constructed without guy wires with
ground anchors.
Panel antenna shall mean an array of antennas designed to concentrate a radio signal in
a particular area.
Personal wireless services shall mean any personal wireless service defined in the
Federal Telecommunications Act which includes Federal Communication Commission
(FCC) licensed commercial wireless telecommunications services including cellular.
personal communication services (J>CSt specialized mobile radio (SMRt enhanced
specialized mobile radio (ESMR). paging as well as unlicensed wireless services. and
common carrier wireless exchange access services.
Stealth facility shall mean any telecommunications facility which is designed to blend
into the surrounding environment. Examples of stealth facilities include architecturally
screened roof-mounted antennas, antennas integrated into architectural elements, and
telecommunications towers designed to look like light poles, mono-power poles or trees.
City of Winter Springs
Ordinance No. 2006-12
Page 2 of 18
Telecommunications tower shall mean a monopole tower constructed as a free-standing
structure greater than thirty-five (35) feet and no more than one hundred sixty-five (165)
feet in height including antenna, which supports communication, transmission or
receiving equipment. The term includes towers for the transmission or receiving
television, AM/FM radio, digital, microwave, cellular telephones, or similar forms of
eiectronic communication. Tne term excludes radar towers, radio support structures
licensed by the FCC, transportable communication devices, private home use of satellite
dishes and television antennas and satellite earth stations.
Whip antenna shall mean a cylindrical antenna that transmits signals in three hundred
sixty degrees (360) degrees.
(b) Findings and intent. The city has with increasing frequency received requests to
approve sites for telecommunications towers. Land development regulations have not
adequately identified specific procedures to address recurring issues relating to the
approval of locations for telecommunications towers. Therefore, it is the intent of this
section to address the recurrent issues pertaining to the approval oftelecommunications
towers upon parcels located in the city. Accordingly, the city commission finds that the
promulgation of this section is warranted and necessary:
(1) To protect residential areas and land uses from the potential adverse impacts of
telecommunications towers when placed at inappropriate locations or permitted without
adequate controls and regulation consistent with the provisions of law;
(2) To minimize the adverse visual impacts resulting from telecommunications towers
through sound and practical design, siting, landscape screening, and innovative
camouflaging techniques all in accordance with generally acceptable engineering and
planning principles and the public health, safety and welfare;
(3) To avoid potential damage to adjacent properties through sound engineering and
planning and the prudent and careful approval of telecommunications tower sites and
structures;
(4) To require shared use/co-location of existing and new telecommunications towers
(capability of having space for three (3) or more carriers) to avoid proliferation of
towers throughout the city. One (1) co-located position shall be reserved exclusively for
the use of the city;
(5) To ensure that location of telecommunications towers is consistent with the
provisions of the City of Winter Springs Comprehensive Plan, the East Central Florida
Regional Policy Plan, the state comprehensive plan as well as the provisions of state and
City of Winter Springs
Ordinance No. 2006-12
Page 3 of 18
federal law; and-
(6) To fix a fair and reasonable compensation, by resolution ofthe city commission, to
be paid to the city for the privilege to locat~ a telecommunications tower in the city and
defray the administrative costs of reviewing the applications. Also, a fee shall apply
separately to each antenna user on the tower or other support structure. Fee rates shall
be renegotiable when contract expires.;..;-
(7) To discourage new telecommunication towers and to encourage the use of existing
structures including. but not limited to. rooftops. sports lighting. utility poles. and
church steeples for deploving personal wireless service facilities: and
(8) To encourage the use of the lowest height technology to provide personal wireless
services including. but not limited to. micro cell technology.
(c) Applicability.
(1) All new telecommunications towers and antennas in the city shall be subject to these
regulations and all other applicable regulations. For purposes of measurement,
telecommunications tower setbacks as listed in subsection (f)C I) shall be calculated and
applied to facilities located in the city, irrespective of other municipal and county
jurisdictional boundaries.
(2) All new communicatio~ antennas (Le., stealth rooftop or building mounted
antennas) which are not attached to telecommunications towers shall comply with
subsection (f)(11).
(3) All telecommunication towers existing on July 14, 1997 shall be allowed to continue
their usage as they presently exist. Routine maintenance shall be permitted on such
existing towers. New construction other than routine maintenance on an existing
telecommunications tower shall comply with the requirements of this section.
(4 ) For purposes of implementing this section, a telecommunications tower that has
received city approval or building permit, but has not yet been constructed, shall be
considered an existing tower so long as such approval is current and not expired.
(d) Location, permitted uses and conditional uses.
(1 ) All telecommunication towers shall comply with the following development
standards:
(i) . They shall be located as far as technically feasible from properties that are
designated residential on the City's Future Land Use or Zoning Maps and shall comply
with all other applicable distance standards which are set forth in the city code:
(ii) To the extent technically feasible. the lowest height technology shall be
City of Winter Springs
Ordinance No. 2006-12
Page 4 of 18
incorporated including. but not limited to. micro cell technology:
(Hi) Towers shall be erected to a height that is the minimum height necessary to
te~hnical1y serve the applicant's needs. but not exceeding the lesser of one hundred
sixty-five (165) or a height calculated based on a tower setback of one hundred twenty-
five (125) percent of the tower height measured at grade from the base of the tower to
the closest residentially zoned property line:
(iv) The most effective stealth technology (including stealth towers) shall be
incorporated:
(v) The location shall be the least visually intrusive location in the community:
(vi) The proposed tower shall be located in an area where the visual impact on the
community is minimized to the greatest extent practicable:
(vii) Antennas shall be close-mounted or concealed. However. concealment shall be
encouraged and preferred to the greatest extent practicable: and
(viii) The visual impact of all towers shall be reduced or eliminated to the maximum
extent possible by concealment. camouflage. and disguise.
(2) In addition to the standards set forth in subsection (1) above. the location of all
proposed telecommunication tower sites shall be detennined based upon a tiered zoning
system. Specifically. a telecommunication tower shall be allowed as either a pennitted
use or a conditional use depending upon the location of the applicable site:
(i) Tier One. Telecommunication towers shall be a permitted use
Tc1ecomnmniGation5 towers shall bo a pc.lmittcd use at the following sites (see map
attachment Figure 1 dated Februal)' 12. 2007 July 14, 1997) subject to other
regulations which may apply:
,a. City of Winter Springs Wastewater Treatment Plant #1/West Plant.
b. Proximate area of the Seminole County School Board Consolidated Services Facility
(alk/a Bus Barn).
c. City of Winter Springs West Effluent Disposal Sites: at the southeast quadrant of Site
16 east of the southern nercolation nonds.
~ ~
d. City of Winter Springs City Hall.
(2) A monopole shall be the permitted t) pc oftcleconuuunieations to wc.r within the City
of Win tel Springs. Stealth-designed monopoles Me Gllcomagcd by the city.
City of Winter Springs
Ordinance No. 2006-12
Page 5 of 18
(311) Tier Two. A telecommunication tower shall be considered a conditional use at the
following locations. provided the proposed tower complies with the standards of this
section and complies with the conditional use criteria set forth in 20-33 of the City
Code:
a. On property owned by the City of Winter Springs that is designated public/semi-
public on the City's future land use map: or
b. On an existing commercial or industrial building. not located or incOl:porated within
a single family residential area. provided the tower does not extend more than ten (10)
feet above the roof line of the building and the tower does not exceed the applicable
maximum height limitation in the City Code: or
c. Within (enclosed) an existing church steeple or other type of existing structure
which exists for a primary purpose other than for personal wireless services. It is the
intent oHhis subsection to take advantage of existing structures for providing personal
wireless services and not to allow the construction of new structures for said pUlJloses;
or
d. Upon existing sports lighting structures. utility structures. and water tanks. provided
the structure is not located within a single famity residential area. the tower does not
extend more than ten (10) feet above the top of the existing structure. and the tower
does not exceed the applicable maximum height limitation in the City Code: or
e. On the site of the proposed Fire Station #3 which is to be located on the south side
of S.R. 434 in Tuscawilla Tract 15. Parcel 3 (approximately 2.300 feet west of
Vistawilla Drive). Said tower. if approved. shall not exceed one hundred twenty (120)
feet.
(Hi) Tier Three. If an applicant presents to the city competent substantial evidence
which demonstrates that Tier One and Tier Two locations are not available or
technically feasible for the location of a tower. a telecommunication tower shall be
considered a conditional use on the following preferred sites. which are listed in order
of preference. The preferred sites shall be considered in the sequence listed below and
the applicant shall be required to demonstrate. based on technical feasibility. that a more
preferred site is not available or suitable before requesting a lessor preferred site:
City of Winter Springs
Ordinance No. 2006-12
Page6<<?f 18
a. Property which has a future land use designation of Industrial.
b. Property which has a future land use designation of Mixed Use and is part of a
Development of Regional Impact.
c. Densely wooded or concealed areas limited to a golf course and areas of property
which have been designated conservation bv perpetual easement and on the city's future
land use map. If a new telecommunication tower is placed within trees or wooded areas.
ihe iow~r ~hall be concealed bv the su..~oundlng trees or wooded areas to the maximum
extent possible to minimize the visibility of the tower from any road. occupied building.
and fairway if located on a ~olf course. Trees can be existing on the subiect property
or installed to meet the requirements of this subsection. or they can be a combination
of both. .
e. Property which has a future land use designation of Greene way Interchange.
All other locations shall be prohibited. Further. the construction of a tower for
speculative purposes shall be prohibited. For purposes of this code. it shall be deemed
primae facie evidence that a tower is being built for speculative purooses if the aPl'licant
can not provide with the application written evidence that one or more carriers have
committed to locate on the proposed tower within three (3) months of the construction
of the tower for a period of at least five (5) years.
Additional tdecouu{1tmication to ~eI sitGS shall only be ptInlittcd as a conditional use
pmsnant to this section. A ploperty deelatcd eligible fot considelation ~ ~ ~~~~
telccommunkation tO~CI site is City of'VViutcI SpIings Fhe Station #3 to be locate.d on
alC south side b, S.R. 434 ill Tusea~il1a TIact 15, rated 3 (apPlOximatd, 2,300 feet
west ofVista~i1la Drive). The telecommunications tO~e.I located 011 this site shall.
lequire. a conditional use, ftom the. WinteI Splings City Commission in accol~=~i~
this sectioll and applicable City Code ptO v isions. The to ~e.1 on this site shall not exceed
a hGight of one hundled twenty feet (120) and shall onl, be Available as a towel site
following apploval by city commission as part of the giant of thG eonditiollal use.
Pollowing apploval aJ,ld consuu(,tion ofthc. four (4) to~en; descdbed in this subsectiol1,
additional to ~c.Is may be applied fOI and justified in ac.coIdane.c. with the. applicable
standatds Nt a e.onditionaluse in the City Code, as well as these standatds.
a. The to~eI at proposed Pire Station #3 and all' subsequent additional
te1ce.ommunicatioll tOWe.I is Iequired fOJ publie. safc.ty com1nun.ic.ation needs, or
b. Tcehnical data is presented b:r an applicant indicating that thc prop6scd tower is the
only technically feasible available site to asstl1e telecoml1lU11katiollS seI vices coveiagc
neGds to a:rGa citizens, and
c. Such technical data specified in subsection b., abovc, is not f-or spcculathfc, untried
tekconnnunic.ations uses but is fOI cullent technology I"cognized 01 apptovcd for
City of Winter Springs
Ordinance No. 2006-12
Page 7 of 18
set vice. Mea nce.ds and lniuke.t conditions undcrapplicablc. state, [Gderal 01 loc.alla~s,
regulations or ordinanc{,s;
d. All such technical data shall be provided at cost to the applicant. The dty may, in
approximate e.ases in its sole dise.letion, letai11 the sel v ice. of technically competent
consultants to evaluate the data submitted by an applicant to justify an additional to~er
pursuant to this OIdinance. The applicant shall post a deposit ~ith thc city manager or
1"';'-> .:{"'':;;cr.l'''''' ;l..15Ulu su,,,L tLattLc appli...clJ!t ~J! the additio!!al t.J{','_,'_.!n!1!llI ,icati,,1l tower
pays the full cost ofu.e.hn1e.al Ie.yieW of such to~eI by city's {,Onsultant,and
c. Initial rc'{icvv' of any additional telecommunication to'Nor sites shall be by tho city's
development Ievie~ committee.. The conditional usc shall also be considered by the
planning and zoning bOMd ~hich shall make. a Icc,ollUnc,ndatioll to the cit} commission
conc{'I11ing said conditional tIse., and
f. Additional tower sites shall be.
(i) Located as fttl' 8:3 possible fronl residentially Eoned property (and at least the
minimum set forth in this oIdinanc'''), and
(ii) Erected to a height that is the minimum height neocssary to technically serve the
applicant's needs, but not exceeding the kSSCI of one hundred sixty-five (1G5) 01 a
height calculated based on atoWeI setback of one hunched t~enty-fi ve. (125) pCIe.ent of
the to WC,l height measmed at grade ftom the base onile to ~eI to the. dosest Iesidentially
zoned prope:rty Ime., and
(m) The use of stealth to'v"v'Cr is cneoumgcd in accordance with this section.
(e) Site plan: Application: Technical Sup.,porting Data.
ill Any telecommunications company or entity that intends to install a
telecommunications tower in the city shall file a site plan for review and approval by the
city in accordance with the city code. All proposed towers requiring conditional use
approval shall be reviewed by the board of adjustment for compliance with this section
and other applicable provisions of the city code. Upon review. -the board of adiustment
shall make a recommendation to the city commission of either approval. approval with
conditions. or denial.
(2) All applications shall contain the information required by the City to process
applicable building permits. aesthetic review pursuant to section 9-600 et seq. of the city
code. site plan permits. and any other required development permits. Applications shall
City of Winter Springs
Ordinance No. 2~ t 2
Page 8 of 18
be processed within the time frames required by law. Additionally. at a minimum. the
following information shall also be provided by the applicant:
a. Name. address. telephone number. and original signatures of the applicant and all co-
applicants.
b. Detailed description of the request.
c. Location information including legal d~scription of subiect property. - parcel
identification. geographic coordinates. and name of nearest roads. street addresses. or
other landmarks.
d. Scaled elevation and engineering drawings depicting the proposed tower and related
facilities induding all mounts. antennas. collocation spaces. and equipment facilities.
e. A current property aporaiser aerial delineating the subiect property. the proposed"
tower and related facilities within 1.000 feet of the proposed tower and facilities.
f. For proposed towers within trees and wooded areas. a tree survey identifying the type.
size (OHm. and hei~t of existing and/or proposed trees within a 75-foot radius offue
proposed tower and related facilities.
g. Future land use and zoning designation of the subiect property.
h. Any applicable letters of approval for the proposed request received by the applicant
from any other-government agency including the FAA. FOOT. and FCC (if permitted
by law).
i. Documentation oflocation and site selection process. including search ring. location
and siting criteria. alternative sites in the area, and site selection methodology.
j. To the extent permitted or required by law." technical data. maps and analysis
showing the area to be served by the proposed tower and personal wireless service
facilities and any claimed gaps in coverage where the applicant desires to erect a tower.
In addition. technical data and maps demonstrating any other proposed. existing. and
authorized towers in the service area as the proposed tower and related facilities.
k. Documentation evidencinl;! that one or more carriers have committed to locate an
antennae on the proposed tower for pw:poses of providing personal wireless services.
(3) The applicant shall provide a visual impact report that provides a line-of-sight
analysis including scaled and colored front side. and rear elevation drawings or
photographs that depict the proposed tower and related facilities. The drawings or
photogJ;:aphs shall also depict any significant natural and manmade features that affect
the buffering of the potential visual impact of the proposed tower and related facilities.
Upon receipt of the visual impact report. the CiD' may require the applicant to conduct
a visual impact demonstration consisting ora minimum of two hour balloon test. which
shall demonstrate the maximum height of the proposed tower. The balloon test shall be
City of Winter Springs
Ordinance No. 2006-12
Page 9 of 18
scheduled with the City and representatives of the City shall be present at the proposed
site for purposes of evaluating: the test.
(4) For pw:poses of demonstrating technical feasibility under this section 20-451. the
.
applicant shall be required to submit. in coni unction with a site plan application and to
the extent permitted or required by law. technical data indicating that the proposed
tower is the only technically feasible available site to assure telecommunications
services coveraQe needs to area citizens. Further. such technical data not for
speculative. untried telecommunications uses. but is for current technology recognized
or approved for service area needs and market conditions under applicable state. federal
or local laws. regulations or ordinances. All such technical data shall be provided at
cost to the applicant. The city may. in approximate cases in its sole discretion. retain the
service of technically competent consultants to evaluate the data submitted by an
applicant to iustify an additional tower pursuant to this section. The applicant shall post
a deposit with the city manager or -his designee in a sum such that the applicant for the
additional telecommunication tower pays the full cost oftechnical review of such tower
by city's consultant.
e. Illitialrcvicw of an, additional tdccommunication tower sit(,s shall be by the dty's
development re-view corntllittec. ~ conditional usc shall also be consideled by the
planning and toning bOaid which shall makG areeommendation to the dty commission
conccrning said conditional use, and
(as defined in Chapter 20 "Zoning", ifapplieable
[TIllS r AGE INTENTIONALLY LEFT BLANK] and/or Chapter 9 "Land
Development" Code of Ordinances, City ofVtTintcr Springs) with the land development
c'oordinatoI. Said site plan shall bc reviewed by the dCvelopment rGview committee.
(t) Performance standards/design criteria.
(1) Setbacks.
a. Telecommunications tower setbacks shall be measured from the base ofthe tower to
the property line of the parcel on which it is located.
b. The setback requirements shall be a minimum of ten (10) feet from any lot line and
shall comply with setback requirements in this section or the City Code for setbacks
from adjoining uses.
(2) Separation of towers from off-site uses used to calculate maximum tower height.
Separation distances between telecommunications towers and the lot line of any
residential zoned property shall be used to determine the maximum height of a proposed
tower. The maximum height of any tower shall not exceed one hundred sixty-five (165)
City of Winter Springs
Ordinance No. 2006-12
Page 10 of 18
feet provided however that the distance from the tower base to the nearest lot line of
residentially zoned property shall be a minimum of one hundred twenty-five (125)
percent of the tower height.
(3) Measurement of height.
a Measurement of telecommunications tower height shall include antenna, base pad,
and any and all other appurtenances and shall be measured from the finished grade of
the parcel on which the telecommunications tower is located.
b. Telecommunications towers shall not exceed one hundred sixty five (165) feet in
height which shall include the antenna.
(4) Dlumination. Telecommunications towers shall not be artificially lighted except to
assure human safety as required by the Federal Aviation Administration.
(5) Finished color. Telecommunications towers not requiring FAA painting/marking
shall be of such color that will blend with the surrounding environment.
(6) Structural design.
a. Site planes) are required and shall be submitted for approval as defined in Chapter 20
Zoning (if applicable) and/or Chapter 9 Land Development, Code of Ordinances, City
of Winter Springs, Florida.
b. Telecommunications towers shall be constructed in accordance with the EIA/fIA
222-E Standards as published by the Electronic Industries Association, which may be
amended from time to time, ASCE 7-95, ItMinimum Design Load for Buildings and
Structures," (Wind Loads Chapter), as published by the American Society of Civil
Engineers, and further defined by ASCE 7-88, ItGuide to the Use of the Wind Load
Provisions", both which may be amended from time to time, and all City of Winter
Springs constructionlbuilding codes as indicated in a statement signed, sealed and dated
by a professional engineer licensed to practice in the State of Florida.
c. Such statement shall also describe the tower's capacity, number and type of antennas
it can accommodate. No tower shall be permitted to exceed its loading capacity. For all
towers attached to existing structures, the statement shall include certification that the
structure can support the load imposed by the tower.
d. All new telecommunications towers, and those existing towers to be modified, shall
have the capability of having space for three (3) or more carriers. Upon request by the.
~ e Qne of these spaces shall be reserved exclusively for the use of the City of
Winter Springs. Tower owners shall accommodate other antenna users on their towers.
City of Winter Springs
Ordinance No. 2006-12
Page II of 18
e. Further, any improvements and/or additions (Le., antenna, satellite dishes, etc.) shall
require submission of a site plan signed, sealed and dated by a professional engineer
licensed in the State of Florida which provides substantial competent evidence of
compliance with the EITffIA222-E Standards ASCE 7-95, "Minimum Design Load for
Buildings and Structures," (Wind Loads Chapter), as published by the American Society
of Civil Engineers, and further defined by ASCE 7-88, "Guide to the Use of the Wind
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LVaU..1. J.U 'V 1.:>J.U.11.:>, UUU.l \,r.lll\"tJ.J. UJ."J V\of 4+.I.J..I.."".....Y"""...... .............,........ "............. ..u ....................., ........ ....................... ........ ........- ......&........'-'
of said improvement or addition.
(7) Public notice. Notice of any request, under this section, shall be published (in a
newspaper of general circulation) and personal notification shall be given to all property
owners located within three (3) times the height of the tower area. Personal notification
shall mean notice sent by first class U.S. mail, and to the board of directors of duly.
recognized homeowners associations.
(8) Signage. No commercial signage or advertising shall be permitted on a
telecommunication tower unless otherwise required by law or the signage pertains only
to the posting of the property relative to trespassing. The use of any portion of a tower
or perimeter fence/wall for signs or advertising purposes, including company name,
banners, streamers, etc., shall be prohibited.
(9) Fencing.
a. A vinyl coated chain-link fence or masonry wall not less than eight (8) feet in height
from finished grade shall be installed by the applicant around each telecommunications
tower. Barbed wire or other fencing method to prevent pedestrian access to the tower,
not to exceed two (2) feet in height, shall be installed along the top of the fence or wall,
but shall not be included when calculating the height of the fence or wall.
b. Access to the tower through the fence or wall shall be through a gate which shall be
locked at all times the tower site is not being occupied by the person or entity in charge
of the telecommunications tower or site.
(10) Landscaping. The visual impacts of a telecommunications tower shall be mitigated
for nearby viewers through landscaping or other screening materials at the base of the
tower and ancillary structures in order to maintain visual aesthetics for those who must
view the site on a regular basis including, but not lirrJted to, proximate residents and the
travelling public. The following landscaping and buffering requirements shall be
required around the perimeter of the tower and accessory structures;
a. A row of shade trees of minimum of eight (8) feet tall that will reach heights of forty
(40) plus feet, two and one-half (2 1/2) inches in caliper, and a maximum of ten (10)
City of Winter Springs
Ordinance No. 2006-12
Page 12 of 18
feet apart shall be planted around the outside perimeter of the fence/wall;
b. A continuous hedge shall be planted in front of the tree line referenced above; it shall
be at least thirty (30) inches high at planting capable of growing to at least thirty-six (36)
inches in height within eighteen (18) months shall be planted in front of the tree line
referenced above; .
c. All landscaping sha!! be of the evergreen variety being ~ minimum (l'lHlity of Florida
#1.
.d. All landscaping shall be xeriscape tolerant and shall be properly maintained by the
telecommunications tower owner/operator to ensure good health and viability.
The use of existing vegetation shall be preserved to the maximum extent practicable and
may be used as a substitute or supplement towards meeting landscaping requirements.
(11) Antennas on buildings. Stealth IOOftOP 01 building mOllilted antennas shall OIU, be
pennittcdaftcI buildout to three (J) co-locations 011 each of tI10 foUl (4) to wel sitcs
indicated in subsection Cd) above. After buildout Oc'Ctl15, then ~ S,tealth rooftop or
building mounted antennas may be erected. Any stealth rooftop or building mounted
antennas which are not attached to a telecommunications tower, shall be a permitted
ancillary use to any commercial, industrial, public buildings, utility installation, and
recreation (sites greater than ten (10) acres in size) land uses indicated on the future land
use map of the city's comprehensive plan provided that:
a. Antennas shall only be permitted on buildings which are at least fifty (50) feet in
height (the height requirement may be waived if public safety needs warrant the
antenna);
b. Antennas may not extend more than twenty (20) feet above the highest point of a roof
(this requirement may be waived if public safety needs warrant additional height);
c. Antennas and related equipment buildings shall be located or screened to minimize
the visual impact of the antenna upon adjacent properties and shall be of a material or
color which matches the exterior of the building or structure upon which it is situated;
d. No commercial advertising shall be allowed on an antenna or supporting structure;
e. No signals, lights, iiiumination shall be permitted on an antenna or equipment
building unless required by the Federal Communications Commission (FCC) or the
Federal Aviation Administration (FAA): and
f. No more than one (1) total unmanned equipment building shall contain more than
seven hundred fifty (750) square feet of gross floor area or be more than twelve (12) feet
City of Winter Springs
Ordinance No. 2006-12
Page 13 of 18
in height. All building shall be subject to regulations of the building department; and
(12) Equipment storage. Mobile or immobile equipment not used in direct support of
a telecommunications tower facility shall not be stored or parked on the site of the tower
unless repairs to the tower are being made, and are in progress.
(13) Schedule of structural integrity. Telecommunication tower owners/operators shall
submit to the building department a certified statement from a qualified, registered,
professional engineer, licensed in the State of Florida, attesting to the structural and
electrical integrity of the tower on the following schedule:
a. All towers examined one year after initial construction.
b. All towers every five (5) years;
c. The city may require such certified statement after a nearby unusually severe storm
event as determined by the (NOAA) national weather service.
(14) Transmission/reception interference. Each application to allow construction or
modification of a telecommunications tower shall include a certified statement from a
qualified, registered, professional engineer, licensed in the State of Florida, attesting that
the construction of the tower, including receiving and transmitting functions, shall not
interfere with public safety communications and the usual and customary transmission
or reception of radio, television, etc., service enjoyed by adjacent residential and non-
residential properties.
(15) Prohibitions with certain principal uses. Telecommunications towers are prohibited
when a proposed or existing principal use includes the storage, distribution, or sale of
volatile, explosive, or hazardous wastes such as LP gas, propane, gasoline, natural gas,
and corrosive or dangerous chemicals. This prohibition does not apply to emergency
generators.
(g) Co-location of communications antennas. The City of Winter Springs desires to
minimize the number and general proliferation of communication towers. This section
is intended to insure that telecommunication towers that are permitted within the City
of Winter Springs are utilized in a manner that provides for the maximum number of
service providers upon each tower within the context oftechnical feasibility and safety.
Further, this section is intended to minimize the number of such towers within the city.
Specifically, as a minimum, telecommunications towers exceeding one hundred (100)
feet in height shall be engineered and constructed to accommodate three (3)
communication providers. The city shall have the authority to require, specify and
otherwise stipulate that telecommunication towers be engineered and constructed in a
City of Winter Springs
Ordinance No. 2006-12
Page 14 of 18
manner that provides for three (3) co-locations as part of the conditional use and/or site
plan approval processes. As a condition of approval of all telecommunication towers
and to the extent that co-location is technically feasible, all owners of existing
telecommunication towers shall, upon request of another service provider and for
reasonable and agreed upon consideration, permit additional communication service
providers upon such existing telecommunication tower. Applicants desiring to construct
new telecommunication towers shall submit written documentation that clearly explains
the need for and reasons for the proposed construction of a new telecommunication
tower rather than locating proposed antenna array/communication equipment upon an
existing tower. Such documentation shall include plans of existing and future towers by
the applicant/provider in question, correspondence with existing telecommunication
tower owners and may include a cpst analysis of alternatives. Existing service providers,
e.g., existing telecommunication tower owners, that are unwilling, upon request of
another~ervice provider, to allow co-location upon such existing tower, shall submit
written documentation to the city with reasons and justification as to why such co-
location cannot be accomplished. Competition between service providers shall not be
considered to be a valid reason for preventing or otherwise obstructing co-location. The
city shall determine whether the applicant and/or existing provider are reasonable and
correct in their respective assertions. If the city determines that either party is being
unreasonableor otherwise uncooperative, the city shall deny the applicant's request for
a new tower and/or the city may cause the existing telecommunication tower's approval
to be revoked and said existing tower to be removed. Such determination involving
existing tower owners shall be made in writing and adopted by a majority vote of the
city commission upon holding an advertised public hearing and notification of the
owner at least fifteen (15) days prior to such hearing. Upon adoption of such
determination by the city commission, the existing tower owner and the property upon
which such tower is located shall be considered to be a violation of the city's Land
Development Regulations and shall be subject to any and all remedies and penalties
thereof.
To minimize adverse visual impacts associated with the proliferation and clustering of
telecommunications towers, co-location of communications antennas by more than one
(1) carrier on existing or new telecommunication towers shall take precedent over the
construction of new single-use telecommunications towers as follows:
(1) Proposed communications antennas shall co-locate onto existing
telecommunications towers.
(2) Type of construction. A telecommunications tower which is reconstructed to
accommodate the co-location of an additional communications antenna shall be of a
monopole tower type. Stealth-designed monopoles are encouraged.
City of Winter Springs
Ordinance No. 2006-12
Page 15 of 18
(3) Height. An existing telecommunications tower may be modified or rebuilt to the
allowed height including antennas by compliance with this article;
(4) Onsite-Iocation.
a. A Telecommunications tower which is being rebuilt to accommodate the co-location
of an additional communications antenna may be moved onsite, but shall comply with
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b. After a telecommunication tower is rebuilt to accommodate co-location, only one (1)
tower shall remain on the site;
(h) Certification of compliance with Federal Communications Commission (FCC) NIER
Standards. Prior to receiving final inspection by the Winter Springs Building
Department, documented certification shall be submitted to the FCC, with copy to the
land development coordinator, certifying that the telecommunications facility complies
with all current FCC regulations for non-ionizing electromagnetic radiation (NIER).
(i) Abandonment.
(1) In the event the use of any telecommunications tower has been discontinued for a
period of one-hundred eighty (180) consecutive days, the tower shall be deemed to be
abandoned. Determination of the date of abandonment shall be made by the building
official who shall have the right to request documentation and/or affidavits from the
telecommunications tower owner/operator .regarding the issue of tower usage. The
telecommunications tower owner/operator shall provide all requested information within
ten (10) working days of a request being made, and failure to so provide shall be
deemed to constitute one hundred eighty days (180) days of non-use ofthe tower. Upon
such abandonment, the owner/operator of the tower shall have an additional ninety (90)
days within which to:
a. Reactivate the use of the tower or transfer the tower to another owner/operator who
makes actual use of the tower; or
b. Dismantle and remove the tower. With regard to towers that received conditional use
approval, ninety (90). days after dismantling or the expiration of the two-hundred
seventy (270) day period as set forth in this section, the conditional use and/or variance
for the tower shall automatically expire.
(2) The City of Winter Springs, upon abandonment, and at its discretion, may assume
ownership of the tower at no cost, or require the owner to dismantle the tower at the
owner's expense. Ifthe decision is to dismantle the tower, the property shall be cleared
of all appurtenances and returned to its natural state.
City of Winter Springs
Ordinance No. 2006-12
Page 16 of 18
(3) An appropriate surety instrument to assure dismantling costs shall be provided by
the owner prior to a tower construction permit.
Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior
~_ :"'1.0""'-- ...,:...,4-.......... 0....,.1:-,.-,- ,...,.,......... ...._...:1 _~,.........1,,+: ......._1"" n ,..1............+0.,..1 ~'(r tl.,o ";h:r r'n1"'r1tn;C!C'1"n nl'" 1"'\~rt~ "fnnnr nt"r11n~n('l.p~
Ill\,; J.1.,1.,,,(;1U. lUWaJl"'~~ a.u,u 1 ""..,V1t,..U..lVJ.J..l UU.VY"\.IU vJ UA."'" ""-''''~J "'--'V..l..u",~...&...u.~..,.....~,-"........, ...a. y-........ ...,.... r........... .....,.. ___...........A~ ",,"~
and resolutions in conflict herewith, are hereby repealed to the extent of the conflict.
Section 4. Incorporation Into Code. This Ordinance, including Figure 1 which is
attached hereto and fully incorporated herein by this reference, shall be incorporated into the Winter
Springs City Code and any section or paragraph, number or letter, and any heading may be changed
or modified as necessary to effectuate the foregoing. Grammatical, typographical, and like errors
may be corrected and additions, alterations, and omissions, not affecting the construction or meaning
of this ordinance and the City Code may be freely made.
Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or
provision of this Ordinance is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall
be deemed a separate, distinct and independent provision, and such holding shall not affect the
validity of the remaining portions of this Ordinance.
Section 6. Effective Date. This Ordinance shall become effective immediately upon
adoption by the City Commission of the City of Winter Springs, Florida, and pursuant to City
Charter.
[ADOPTION PAGE FOLLOWS]
City of Winter Springs
Ordinance No. 2006-12
Page 17 of 18
ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular
meeting assembled on the 12th day of February, 2006,
A LORENZO-LUACES, City Clerk
Approved as to legal form and sufficiency for
the City 'nter Springs only:
ANTHONY . GARGANESE, City Attorney
First Reading:
January 22, 2007
Second Reading:
February 12,2007
Effective Date:
February 12,2007
City of Winter Springs
Ordinance No. 2006-12
Page 18 of 18
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ATTACHMENT C
CONSULTING ENGINEERS
RECEIVED
APR 2 6 2007
ARTHUR K. PETERS
RADIO
TELEVISION
CATV
COMMON CARRIER
5422 NW 91 ST BOULEVARD
GAINESVILLE, FLORIDA 32653-2872
CllY 01" WINTER SPRINGS
~~'l'.tlWCCE
(352) 331-0149
FAX: (352) 331-8026
www.akpce.com
akpce@cox.net
April 17, 2007
Mr. Ronald W. McLemore
(":4-., "...................,...,......
\...IllY. IVlalla~cl
City of Winter Springs
1126 East State Road 434
Winter Springs, FL 32708
Dear Mr. McLemore:
This is in response to your request for information concerning (1) the experience that the City of
Medina, Washington is having with disguise and stealth cellular technology, and. (2) will similar
technology work in Winter Springs.
The City of Medina is small, with a, pop,ulation of about 3000 persons, a land area of 1.43 square miles
and a water area of 3.35 square miles. Its. population and area is ten times smaller and its tree density is
much lower than Winter Springs. Finally, Medina's terrain undulations are approximately similar to
Winter Springs except near the water where the land abruptly falls to sea level.
I spoke with Ms. Rebecca Leslie, a planning consultant to the City, and with Mr. Joseph Gellings,
Director of Development Services. The City regulates Wireless Communications Facilities in Title 17,
Chapter 90 of its Municipal Code.
A feature most pertinent to this analysis is that Medina overall tower heights are restricted to 35 ft.
above ground, including all antennas. This restriction has given rise to a number of different tower
configurations. For example, one tower is a relatively thin pole-like structure. Another is disguised as a
light pole in a church parking lot. Another has recently been rebuilt using a fatter, shrouded cylindrical
tower. Co-location is encouraged on all towers. Some ground facilities are placed inside of in-ground
vaults having an above ground height of about 5 inches.
Medina has seven cellular towers. The spokespersons knew of few service problems. At present four
providers serve Medina over the seven towers. This implies that not all potential providers have physical
facilities in the City. It is believed that each tower supports a single provider. There are three cities
adjacent to Medina that likely have cell sites that provide service into Medina, possibly including
providers having no sites within Medina.
Since Medina cells use regular cellular equipment, there are no special technical issues relating to
disguise and stealth antennas. Only physical mounting and shrouding considerations differ between
normal and disguised facilities. For example, regular antennas mount to fake trees that hide the
antennas behind non-conducting fake leaves or needles. Also, regular antennas are used behind
shrouds within a lighting standard extension or a flagpole.
Because standard technology is employed in Medina, similar technology will work in Winter Springs.
However, due to the dissimilar size and population of the two cities, several important considerations
must be examined before employing the Medina experience.
Page 2
Mr. Ronald W McLemore
April 17, 2006
Most importantly, according to the Medina spokespersons, stealth and disguise facilities do not totally
hide cellular facilities and antennas, except in cases such as bell towers and the like. My personal
experience is that, for example, a tall bell tower or tall fake tree are almost as visually objectionable as
monopole towers because they can be foolishly out of scale and, as a result, more visible in some
locations and circumstances.
Another consideration is the number of towers required. In Medina there are seven towers in an area of
1.3 square miles for a tower density of 5.3 towers per square mile. If consideration is given in Winter
Springs to a 35 ft. maximutTl height then, for the typical number of providers in Florida, three more
providers must be accommodated. At 35 ft. it is doubtful that there would be any collocations.
Therefore, the tower density would rise in Florid.a to 10 towers with a density of 7.7 towers per square
mile. The Winter Springs area currently requiring improved coverage has a radius of about one mile
covering an area of about 3.1 square miles. It could require 24 towers to cover that area with 7
providers using 35 ft. towers. This includes both 800 MHz and 1900 MHz systems.
If towers were allowed 70 ft. heights the numbers would decrease both because of greater range and a
few collocations might occur. Even with this height increase the number of towers could, in this case,
require 6 or more towers. There is also the issue that quite possibly the providers will do nothing further
in Winter Springs because of the expense of multiple towers and cell site equipment.
I recommend some consideration be given to the utilization of a single, relatively thin cylindrical
(uniform cross-section) monopole structure that houses antennas and transmission lines inside a non-
conducting shroud. These structures seem to be less visually distracting and perceptually fade into the
background noise rather quickly. The finish should be non-reflecting and have a pleasant, neutral gray
color, as opposed to white or black. This type of structure has been termed a flagpole, but when used
as an actual (white) flagpole, is usually offensively out-of-scale.
Finally, as an update to my March, 2006 report, there has been little progress of cellular alternative
technologies. There are a few standards being voted on in the next months that will lead to the
development of dual mode service that is aimed at seamlessly merging Wi-Fi and cellular services.
However, current plans for these services revolve around computer centric operations such as short
messages, images and e-mail. While there is mention of voice services and efforts to include voice in
the initial standard processes, convenient and fluid cellular-like voice services are still years in the future
because there have been no viable suggestions or proposals relating to managing transfer of calls
between Wi-Fi networks and the public switched telephone (cellular) network.
Sincerely,
Arthur K. Peters, P.E.
ViaFacsimile and USPS
..
ATTACHMENT D
CITY OF WINTER SPRINGS
COMMUNITY DEVELOPMENT DEPARTMENT
1126 STATE ROAD 434
WINTER SPRINGS, FL 32708
407-327-5966
FAX:407-327-6695
BOARD OF ADJUSTMENT APPLICATION
~ CONDITIONAL USE I SPECIAL EXCEPTION
o VARIANCE
o WAIVER
.:JQlU.po.. ~L 3.3 (D ()Cf
~ ~ ~ ~~ ~
.Ala.tLR:411 - ~1~)3.35 -41l 0& I alaf\t.uiz. @ ea~+b.1'i\k-Ile..'
A"'\~ COcj,lQr1-(~'5) Qz8'- 4403 I QM~. cbc.k~(4t"@ -f-oweLja.\. C.OM
If Applicant does NOT own the property:
PROPERTY OWNER: ~+e.l Spi2..ifl5S D.CllfJJ..e-- .
Last First Middle
MAlLrnG ADDRESS: ~~s~~~<;~. 3?}og
Il j _1/ CitY. Sta~ / ZipCode I
~e.. ~at.d{\f~.L - (4C1) 3~lq- ''is I. M~l1e~@iusc4WI-I(D..Cc, COIo1
APPLICANT:
MAILING ADDRESS:
PHONE & EMAIL
PHONE & EMAIL
This request is for the real property described below:
PROPERTY ADDRESS: J~ W'i1+ell ~a..'rljs. ~.I ~-Irr\-e..~~ .f L .321bi"
TAXPARCELNUMBER:-.3.J-~C-~l-513'B- DOOO- o~4A
SIZE OF PARCEL: to) k,2u, 13~. Dct SC(: .ft.,/ 140.5 ac..
, Square Feet Acres
EXISTING LAND USE: G bW QouQ.S~
Current FUTURE LAND USE Classification: ~('_~e.().-h' Q(\ w~'tOl)D (J'Je.t2. \a.i-
Current ZONING Classification~--:ReC.~e~'Oil w~+h VU\') oJe~~
Please state YOUR REQUEST:
R.ECEIVED
Ar-R ? ,'~ 'I)"""}
l I 1-,." ~ L-.,;.oJi
CITY QF WINTER SPRINGS
Permitting. Kim
March 2005
The APPLICANT IS RESPONSIBLE for posting the blue notice card (provided by the City) on the site at
least SEVEN (7) DAYS prior to the Board of Adjustment Meeting at which the matter will be considered.
Said notice shall NOT be posted within the City right-of-way. All APPLICANTS shall be afforded minimal
due process as required by law, including the right to receive notice, be heard, present evidence, cross-
examine witnesses, and be represented by a duly authorized representative.
The CITY COMMISSION shall render all final decisions regarding variances, conditional uses and waivers
and may impose reasonable conditions on any approved variance, conditional use or waiver to the extent
deemed necessary and relevant to ensure compliance with applicable criteria and other applicable
piOV isiolls of the City Code and Comprehensive Plan. All formal decisions shall be based on competent
substantial evidence and the applicable criteria as set forth in Chapter 20, Zoning. APPLICANTS are
advised that if, they decide to appeal any decisions made at the meetings or hearings with respect to any
matter considered at the meetings or hearings, they will need a record of the proceedings and, for such
purposes, they will need to insure that a verbatim record of the proceedings is made, at their cost, which
includes the testimony and evidence upon which the appeal is to be based, per 286.0105, Florida Statutes.
Any CONDITIONAL USE, VARIANCE, or WAIVER which may be granted by the City Commission shall
expire two (2) years after the effective date of such approval by the City Commission, unless a building
permit based upon and incorporating the conditional use, variance, or waiver is issued by the City within
said time period. Upon written request of the property owner, the City Commission may extend the
expiration date, without public hearing, an additional six (6) months, provided the property owner
demonstrates good cause for the extension In addition, if the aforementioned building permit is timely
issued, and the building permit subsequently expires and the subject development project is abandoned or
discontinued for a period of six months, the conditional use, variance or waiver shall be deemed expired
and null and void. (Code of Ordinances, Section 20-36.)
THE FOllOWING ITEMS ARE TO BE SUPPLIED WITH THIS APPLICATION:
a' A copy of the most recent SURVEY of the subject property.
iJ'" A copy of the LEGAL DESCRIPTION reflecting the property'boundaries.
Iil'" 11 x 17 MAP showing ADJACENT STREETS and ZONING AND LAND USE classifications
on the ADJACENT PROPERTY.
~ JUSTIFICATION for the Request (See Attached List)
rzf NAMES and ADDRESSES of each property owner within 150 ft. of each property line. (3+iM,-<:sfhe. \'-e~~+ ,)
M' Notarized AUTHORIZATION of the Owner, bf 'the ~we..~ - 400ff
IF the Applicant is other than the Owner or Attorney for the Owner (see below).
[Y"" APPLICATION FEES:
FEES are as SHOWN BELOW plus ACTUAL COSTS incurred for ADVERTISING or NOTIFICATION,
and for REIMBURSEMENT for TECHNICAL and/or PROFESSIONAL SERVICES which may be
required in connection with the review, inspection or approval of any development (based on accounting
submitted by the City's Consultant) , payable prior to approval ofthe pertinent stage of development.
CONDITIONAL USE / SPECIAL EXCEPTION $ 500
WAIVER $ 500
V ARlANCE $ 500
TOTAL DUE
$
!5()b~
2
Mw:h 2005
By sl1bmitting this application you hereby grant temporary fight of entry for city officials to enter upon the subject
property f()f PUlposes of evaluating this application_
~.**.***************************.*...**....*.......................*.**....***********
FOR USE WHEN APPLICANT IS OWNER OF THE SUBJECT REAL PROPERTY:
This if> to certify that I am the Owner in fee simple of subject lands described within this Application for
Board of Adjustment consideration:
Signature of Owner
Sworn to and subscribed before me this
_day of 20_-
Notary Public
My Commission expires:
Personally Known
Produced Identification:
(Type)
Did take an Oath
Did Not take and Oath
*******.**..**...***.**.....*...*.......................*.*..****..***************.***
11 FOR USE WHEN APPLICANT IS NOT OWNER OF THE SUBJECT REAL PROPERTY:
I, ~/(,'P/
,
O:;r~fr
do hereby, with my notarized signature, allow
V e '\ t e ~ {) e " e lop IU e I1 t, L J C torepresent me in this A pplication related to my property. The
property is identified as: Tax Parcel Numbei-(s) 31- 2 0- 31- SBB-OOOO-004A
~"200
^~
Signature of Ow er(s)
WINTER SPRINGS BLVD.
~
,&/
WINTER SPRINGS FL 32708
~Q~t)~
Notary Public
My Commission expires: "r. t
'F.e:.b. ~(p{ ~ 0
S\YO:;O to. and subscribed before me this
p ~ day of Afl'tA L 2007.
"I -
V'/ PersonaIIy Known
Produced 10: (Type)
Did take an Oath
Did Not take and Oath
*.****.*.++.++.*~.*****~***~***..~*..**..*~*
m"~~~..'" LAURA A. ROUNTREE
~~.. \ NofaIy PubflC - State of Florida
~. · . ~ Commission Expires Feb 26, 2010
;~ ~:: Commission # DO 4AS'iAA
...~~;h~.. !,*''''''.N'''.?I** it"" :rn~~..*
10m" tsonuea tsy auona Notary Assn.
.....
3
M:=h 2005
CONDITIONAL USE PERMIT REQUEST
Taken from Winter Springs Code of Ordinances, Section 20-33(d):
All Conditional Use recommendations and final decisions shall be based on the
following criteria to the extent applicable. Attach additional paper as necessary:
.i'R
What is the Conditional Use you are requesting?
150' flag less flagpole-type wireless telecommunications stealth tower and
associated ground equipment ("the wireless facility").
~ How is the Conditional Use (including its proposed scale and intensity,
fraffic- generating characteristics, and offsite impacts) compatible and
harmonious with adjacent land uses?
The wireless facility is proposed to be located on a 140.5 acre parent tract
developed as a golf course. The size of the parent tract itself absorbs most, if not all, of
any adverse visual impact from any offsite residential uses. Additionally the proposed
wireless facility has been located on the parent tract abutting a mature tree canopy so
as to provide additional buffering and screening from offsite uses. The proposed
wireless facility, at full capacity, will only generate approximately 8 vehicle trips per
month.
~ Will the Conditional Use adversely impact land use activities in the
immediate vicinity? If no, why not?
No. The proposed wireless facility will neither adversely impact the recreational
uses on the parent parcel nor will it adversely impact off-site residential uses.
~ Demonstrate how the size and shape of the site, the proposed access and
internal circulation, and the design enhancements are adequate to accommodate
the proposed scale and intensity of the conditional use requested. The site shall
be of sufficient size to accommodate design amenities such as screening buffers,
landscaping, open space, off-street parking, and other similar site plan
improvements needed to mitigate against potential adverse impacts of the
proposed use.
The proposed wireless facility is proposed to be a 70' by 70' foot compound, the
minimum size necessary to accommodate 7 carriers on the facility. The height
proposed, 150', is also the minimum height required to accommodate 7 carriers. The
stealth design of the wireless facility mitigates any adverse visual impacts. The
compound will be fenced and screened according to the land development code. The
proposed wireless facility has been placed on the parent tract so as to maximize the
screening and buffering of existing mature vegetation. The site requires no off street
parking.
ORLA_ 439939.1
fA Will the proposed use have an adverse impact on the local economy,
including governmental fiscal impact, employment, and property values? If no,
why not?
No, the proposed wireless facility places no demand on city services, displaces
no one, and will have no impact on property values.
~ _ _~i11 ~e propose~ US! have.~~.adverse ~~pact o~ n~~~.~~1 environment,
inclUding air, water, ana nOise pOllution, vegemuon ana wlIOllfe, open space,
noxious and desirable vegetation, and flood hazards? If no, why not?
The proposed wireless facility does not require sewer or water, creates no odor,
noise, or flood hazard, nor will create any adverse impact on vegetation or wildlife.
L:/! Will the proposed use have an adverse impact on historic, scenic and
cultural resources, including views and vistas, and loss or degradation of cultural
and historic resources? If no, why not?
There are no historical or cultural resources nearby.
rA Will the proposed use have an adverse impact on public services, including
water, sewer, surface water management, police, fire, parks and recreation,
streets, pubic transportation, marina and waterways, and bicycle and pedestrian
facilities? If no, why not?
No, the proposed wireless facility creates little or no demand on public services.
The unmanned facility does not need water or sewer, and creates no parking, traffic, or
other transportation issues.
rjJ. Will the proposed use have an adverse impact on housing and social
conditions, including a variety of housing unit types and prices, and
neighborhood quality? If no, why not?
The proposed wireless facility is to be placed on a parent tract that is already
developed as a golf course. The surrounding lands are also already developed with
residential uses No adverse impact is expected. The proposed wireless facility will,
however, greatly enhance the ability of the wireless industry to serve the ever increasing
demands and needs of the adjacent residential uses.
2
ORLA_ 439939.1
AFFIDAVIT
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
BEFORE ME, the undersigned authority, personally appeared Alan Ruiz, President,
Vertex Development LLC, who being by me first duly sworn, under oath, deposes and states as
follows:
1. I am over eighteen (18) years of age and have personal knowledge of the matters
contained herein.
2. I am the President of Vertex Development LLC and have the authority to sign this
affidavit.
3. The construction of the tower located at 1500 Winter Springs Boulevard, Winter
Springs, will accommodate Co-Location of additional antennas for wireless service
providers or users.
4. Based upon Vertex's search of the area, no existing Telecommunications Tower,
Alternative Tower Structure, building or other structure is located within T-Mobile's
geographic search area
5. Based upon Vertex's search of the area, government-owned property is not available
within the T -Mobile search area for the Wireless Communication Facility.
6. Vertex, and/or its successors and assigns, hereby agree to allow the shared use and
Co-Location of the Tower, if additional user(s) agree in writing to meet reasonable
terms and conditions for such shared use.
FURTHERAFFIANTSAYE~H~ L~
Alan Ruiz, President
Vertex Development LLC
COUNTY OF HILLSBOROUGH
STATE OF FLORIDA
This fOregO~~wafJ acknowledged before me this 0l0'ft- day of ~, I
, 2007, by all u .. Z , who is personally known to me or
produced and W 0 dfd take an oath. '
WITNESS my hand and official seal, thisa/O~y of 2007.
My Commission Expires:
"""""!4.. AMV A. COCHRAN
Jj ...... "~;\.
i:~' i Commission II DD 417630
~. :1 My Commission Expires
~~ ,~"
, ~~,:,"r-~' July 01, 2009
01/00/00 12:00A P.001
V~llre y
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ctJ
May 23,2007
.
verI 'Q"wireless
To: Amy Cochran
V ertex Development, LLC
405 South Dale Mabry Highway,
#244
Tampa, FL 33609-2820
Verizon Wireless
777 Yamato Road
Suite 600
Boca Raton, FL 33431
Re: Proposed Tower Collocation, Tuscawilla Site ID# 80321 at Winter Springs, FL.
Dear Amy:
Thank you for informing Verizon Wireless of dle proposed tower that Vertex Development is
planning to build at 1500 Winter Springs Blvd., Winter Springs Florida 32708. Verizon Wireless
has determined that it has a need for additional coverage and/or capacity that could be served by
a collocation on the proposed communications tower. I will be contacting you to discuss your
proposed site in more detail and to obtain periodic updates as to your progress to obtain final
zoning approval.
Verizon Wireless will consider entering into a collocation agreement with Vertex Development,
LLC to collocate on the proposed tower to d1e extent that Vertex Development, LLC obtains all
necessary governmental approvals, and assuming that the parties can corne to terms on a
collocation agreement with terms and conditions acceptable to Verizon Wireless.
This letter is not a commitment by Verizon Wireless to enter into a collocation agreement, and
this letter should not be relied upon by Vertex Development, LLC in that regard. A binding
agreement for the lease of any tower space from Vertex Development, LLC shall not exist until a
final, definitive, and fully negotiated collocation agreement has been fully executed and
delivered. Further, it is understood by all parties that Verizon Wireless reserves the right to
simultaneously negotiate with other landlords for sites in the immediate geographical area in
which the above described proposed communications tower is to be located, and there is no
assurance whatsoever that Verizon Wireless will conclude a deal for the above described
proposed communications tower unless and until a collocation agreement is fully executed and
delivered,
Cordially,
,/1 '1 "
( ," /ll ~~A....J:-!<..--
>!?~~.~~r-~/ - .
VJosephine Conde, Real Estate and Construction Manager
cc: Jason Hillenbrand, Project Manager
01/00/00 12:00A P.001
--
TOWER LEASE WITH OPTION
nns TOWER LEASE WIlli OPTION (this "Lease") is by and between Vertex Development, ll.C, a Delaware
limited liability company ("Landlord") and T-Mobile South LLC, a Delaware Limited Liability Company ("Tenant").
L Option to Lease.
(a) In consideration of the payment of (the "Option Fee") by Tenant to Landlord,
Landlord hereby grants to Tenant an' option to lease the use of a portion of the real property described in the attached Exhibit A
(the "Property"), together with the right to use the tower located thereon ("Tower") on the terms and conditions set forth herein
(the "Option"). The Option shall be for an initial term of twelve (12) months, conunencing on the Effective D~ (as defined
below) (the .Option Period"). The Option D...n.vl nulV .... "'Xtended bv Tenant for an additional six (6) months upon written
notice to Landlord and payment of the sum 0" ) rAdditional Option Fee") at any time prior to the
end of the Option Period.
(b) During the Option Period and any extension thereof, and during the term of this Lease, Landlord agrees to
cooperate with Tenant in obtaining, at Tenant's expense, all licenses and pennits or authorizations required for Tenant's use of the
Premises (as defined below) from all applicable government and/or regulatory entities (including, without limitation, zoning and
land use authorities. and the Federal Communications Commission ("FCC") ("Govemmeotal Approvals"), including appointi.ng
Tenant as agent for all land use and zoning permit applications, and Landlord agrees to cooperate with and to allow Tenant, at no
cost to Landlord, to obtain a title report, zoning approvals and variances. land-use permits, and Landlord expressly grants to
Tenant a right of access to the Property to perform surveys, soils tests, and other engineering procedures or environmental
investigations on the Property necessary to determine that Tenanfs use of the Premises will be compatible with Tenant's
engineering specifications. system design, operations and Governmental Approvals. Notwithstanding the foregoing, Tenant may
not change the zoning classification of the Property without first obtaining Landlord's written consent During the Option
Period and any extension thereof, Landlord agrees that it will not interfere with Tenant's efforts to secure other licenses and
permits or authorizations that relate to other property. During the Option Period and any extension thereo~ Tenant may exercise
the Option by so notifying Landlord in writing, at Landlord'~ address in accordance with Section 12 hereof.
(c) If Tenant exercises the Option, then, subject to the following terms and conditions, Landlord hereby leases to
Tenant the use of that portion oftbe Tower and Property, together with easements for access and utilities, generally described and
depicted in the a1taclJed Exhibit B (collectively referred to hereinafter as the "Premises"). The Pmnises are located at 1500
Winter Springs Blvd, W"mter Springs, FL 32708. Tenant's location on the Tower sban be at the 155' level of the approved
structure.
2. Imn- The initial term of the Lease shOal I be seven (7) years commencing on the date of exercise of the Option (the
"Commencement Date"), and terminating at midnight on tbe last day of the initial term (the "Initial Termj.
3. Pennitted Use. The Premises may be used by Tenant for the transmission and reception ofradio communication
signals and for the construction, installation, operation, maintenance, repair, removal or replacement of related facilities, tower
and base. antennas, microwave dishes. equipment shelters and/or cabinets and related activities. Approved Equipment is shown
on the attached Exhibit D.
4. Rmt Tenant shalJ pay Landlord, as rent . per month
("Rent.). Rent shall be payable within twenty (20) days following the Commencement Date prorated for the remainder ufthe
month in which the Commencement Date falls and thereafter Rent will be payable monthly in advance by the fiflh day of each
month to Vertex Development, LLC at Landlord's address specified in Section 12 below. If this Lease is terminated at a time
other than on the last day ofa month, Rent sball be prorated as of the date of termination for any reason (other than a default by
Tenant) and all prepaid Rent shall be immediately refunded to Tenant
5. ~ Tenant sban have the right to extend this Lease fur four (4) additional, five-year tenDs (each a "Renewal
Termj. Each Renewal Term shall be on the same terms and conditions as set forth herein, except that Rent shall be increased by
'. .. '0' of the Rent paid over the preceding term. This Lease shall automatically renew for each
suCCCSSJ,ve Kenewa1 Tc:nn unless Tenant notifies Landlord, in writing, of Ten ant's intention not to renew this Lease, at least sixty
(60) days prior to the expiration of the Initial Term or any Renewal Term. If Tenant shall remain in possession oftbe Premises at
the expiration of this Lease or any Renewal Term without a written agreement, such tenancy shall be deemed a month-ta-month
tenancy under the same terms and conditions of this Lease.
6. Interference. Tenant shall not use the Premises in any way which interferes with the use of the Property by
Landlord or lessees or licensees of Landlord, with rights in the Property prior in time to Tenant's (subject to Tenant's rights under
this Lease, including, without limitation, non-interference). Similarly, Landlord shall not use. nor shall Landlord permit its
lessees. licensees. employees, invitees or agents to use, any portion of the Property in any way which interferes with the
Site NlIId>er:
SiCe Name:
M2rket:
E482C
N. Tusbwilb
0rIaDcI0
VersioD 10-2.01
01/00/00 1Z:00A P.00Z
,---'
operalions of Tenant Such interference shall be deemed a material breach by the interfering party, who shall, upon wrinen
notice from the other, be responsible for terminating said interference. In the event any such interference does not cease
promptly, the parties acknowledge that continuing interference may cause irreparable injury and, therefore, the injured party shall
have the right, in addition to any other rights that it may have at law or in equity, to bring a court action to enjoin such
interference or to terminate this Lease immediately upon written notice.
T Improvements: Utilities: Access,
(a) Tenant shall have the right, at its expense, to erect and maintain on the Premises improvements, personal property
and facilities necessary to operate its communications system, including, without (imitation, radio transmitting and receiving
antennas, microwave dishes, tower and base, equipment shelters and/or cabinets and related cables and utility lines and a location,
based system, including, \\.;thout limitation, antenna(s), coaxial cable, base units and other associated equipment (collectively,
~b~ H..\r..t:':;~in~ FacHities")J as such location based system may be required by any county) state or federal agency/department
Tenant shall have the right to alter, replace, expand, enhance and upgrade the Antenna Facilities at any time during the term of
this Lease, Tenant shall cause all construction to occur lien-free and in compliance with all applicable laws and ordinances,
Landlord acknowledges that it shall not interfere with any aspects of construction, including, without limitation, attcmpting to
direct construction personnel as to the location of or method of installation of the Antenna Facilities and the Easements (as
defined below) ("Construction Interference'} Landlord further acknowledges that it will be responsible for any costs and
damages (including, fines and penalties) that are directly attributable to Landlord's Construction Interference. The Antenna
Facilities shall remain the exclusive property of Tenant. Tenant shall have the right to remove the Antenna Facilities at any time
during and upon the expiration or termination of this Lease.
(b) Tenant, at its expense, may use any and all appropriate means of restricting access to the Antenna Facilities,
including, without limitation, the construction of a fence.
(c) Tenant shall, at Tenant's expense. keep and maintain the Antenna Facilities now or hereafter located on the Property
in conunercially reasonable condition and repair during the term of this Lease, normal wear and tear and casualty cxcepted,
Upon termination or expiration of this Lease, the Premises shall be returned to Landlord in good, usable condition, normal wear
and tear and casualty excepted.
(d) Tenant shall have the right to install utilities, at Tenant's expense, and to improve the present utilities on the
Property (including, but not limited to, the installation of emergency power generators). Landlord agrees to use reasonable
efforts in assisting Tenant to acquire necessary utility service. Tenant shall, wherever practicable, install separate meters for
utilities used on the Property by Tenant. In the event separate meters are not installed, Tenant shall pay the periodic charges for
all utilities attributable to Tenant's use. Landlord shall diligently correct any variation, interruption or failure of utility service.
(e) As partial consideration for Rent paid under this Lease, Landlord hereby grants Tenant an Easements in, under and
across the Property for ingress, egress, utilities and access (including access for the purposes described in Section I) to the
Premises adequate to install and maintain utilities, which include, but are not limited to, the installation of power and telephonc
service cable, and to service the Premises and the Antenna Facilities at all times during the Initial Term of this Lease and any
Renewal Term (collectively, the "Easements"). The Easements provided hereunder shall have the same term as this Lease.
(f) Tenant shall have 24-hours-a-day, 7-days-a-week access to the Premises ("Access") at all times during the Initial
Term of this Lease and any Renewal Term. In the event Landlord, its employees or agents impede or deny Access to Tenant, its
employees or agents, Tenant shaH, without waiving any other rights that it may have at law or in equity, deduct from Rent
amounts due under this Lease an amount equal to five hundred and no/I 00 Dollars ($500.00) per day for each day that Access is
impeded or denied.
8. Termination. Except as otherwise provided herein, this Lease may be terminated, without any penalty or further
liability as follows:
(a) upon thirty (30) days' written notice by Landlord if Tenant fails to cure a default for payment of amounts due under
this Lease v..>lthin that thirty (30) day period;
(b) immediately if Tenant notifies Landlord of unacceptable results of any title report, environmental or soil tests prior
to Tenant's installation of the Antenna Facilities on the Premises, or if Tenant is unable to obtain, maintain, or otherwise forfeits
or cancels any license (including, without limitation, an FCC license), pennit or any Governmental Approval necessary to the
installation and/or operation ofthe Antenna Facilities or Tenant's business;
(c) upon ninety (90) days' written notice by Tenant if the Property or the Antenna Facilities are, or become
unacceptable under Tenant's design or engineering specifications for its Antenna Facilities or the communications system to
which the Antenna Facilities belong;
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(d) immediately upon written notice by Tenant if the Premises or the Antenna Facilities are destroyed or damaged so as
in Tenant's reasonable judgment to substantially and adversely atfect the effective use of the Antenna Facilities. In such event,
all rights and obligations of the parties shall cease as of the date of the damage or destruction, and Tenant shall be entitled to the
reimbursement of any Rent prepaid by Tenant. If Tenant elects to continue this Lease, then all Rent shall abate until the Premises
and/or the Antenna Facilities are restored to the condition existing immediately prior to such damage or destruction; or
(e) at the time title to the Property transfers to a condemning authority pursuant to a taking of all or a portion of the
Property sufficient in Tenant's determination to render the Premises unsuitable for Tenant's use. Landlord and Tenant shall each
be entitled to pursue their own separate awards with respect to such taking. Sale of all or part of the Property to a purchaser with
the power of eminent domain in the face of the exercise of the power shall be treated as a taking by condemnation.
9. Default and Right to Cure. Notwithstanding anything contained herein to the contrary and without waiving any
other rights granted to it ::t k", 0r iii equity, ""ell P<l"Y ~h"ii have Lhe nght, Out not the obiigation, to terminate this Lease on
written notice pursuant to Section 12 hereof, to take effect immediately, if the other party (i) fails to perform any covenant for a
period of thirty (30) days after receipt ofwrillen notice thereof to cure or (ii) commits a material breach of this Lease and fails to
diligently pursue such cure to its completion after sixty (60) days' written notice to the defaulting party.
10. Taxes. Landlord shall pay when due all real property taxes for the Property, including the Premises. In the event
that Landlord fails to pay any such real property taxes or other fees and assessments, Tenant shall have the right, but not the
obligation, to pay sueh owed amounts and deduct them from Rent amounts due under this Lease. Notwithstanding the foregoing,
Tenant shall pay any personal property tax, real property tax or any other tax or fee which arc directly attributable to the presence
or installation of Tenant's Antenna Facilities, only for so long as this Lease has not expired of its own terms or is not terminated
by either party. Landlord hereby grants to Tenant the right to challenge, whether in a Court, Administrative Proceeding, or other
venue, on behalf of Landlord andlor Tenant, any personal property or real property tax assessments that may affect Tenant. If
Landlord receives notice of any personal property or real property tax assessment against the Landlord, which may affect Tenant
and is directly attributable to Tenant's installation, Landlord shall provide timely notice of the assessment to Tenant sufficient to
allow Tenant to consent to or challenge such assessment. Further, Landlord shall provide to Tenant any and all documentation
associated with the assessment and shall execute any and all documents reasonably necessary to effectuate the intent of this
Section 10. In the event real property taxes are assessed against Landlord or Tenant for the Premises or the Property, Temint
shall have the right, but not the obligation, to terminate this Lease without further liability after thirty (30) days' written notice to
Landlord, provided Tenant pays any real property taxes assessed as provided herein.
II. Insurance and Subro~ation and Indemnification.
(a) Tenant will provide Commercial General Liability Insurance in an aggregate amount of One Million and nolI 00
Dollars ($1,000,000.00). Tenant may satisfy this reljuircment by obtaining the appropriate endorsement to any master policy of
liability insurance Tenant may maintain.
(b) Landlord and Tenant hereby mutually release each other (and their successors or assigns) from liability and waive
all right of recovery against the other for any loss or damage covered by their respective first party property insurance policies for
all perils insured thereunder. In the event of such insured loss, neither party's insurance company shall have a subrogated claim
against the other. To the extent loss or damage is not covered by their tirst party property insurance policies, Landlord and
Tenant each agree to indemnify and hold harmless the other party from and against any and al! c!ai!l".s, damages, cost and
expenses, including reasonable attorney fees, to the extent caused by or arising out of (a) the negligent acts or omissions or
willful misconduct in the operations or activities on tile Property by the indemnifying party or the employees, agents, contractors,
licensees, tenants andlor subtenants of the indemnifying party, or (b) a breach of any obligation of the indemnifying party under
this Lease. Notwithstanding the foregoing, this indemnification shall not extend to indirect, special, incidental or consequential
damages, including, without limitation, loss of profits, income or business opportunities to the indemnified party or anyone
claiming through the indemnified party. The indemnifying party's obligations under this section are contingent upon (i) its
receiving prompt written notice of any event giving rise to an obligation to indemnifying the other party and (ii) the indemnified
party's granting it the right to control the defense and settlement ofthe same. Notwithstanding anything to the contrary in this
Lease, the parties hereby confirm that the provisions of this section shall survive the expiration or termination of this Lease.
Tenant shall not be responsible to Landlord, or any third-party, for any claims, costs or damages (including, fines and penalties)
attributable to any pre-cxisting violations of applicable codes, statutes or other regulations governing the Property.
12. Notices. All notices, requests, demands and other communications shall be in writing and are effective three (3)
days after deposit in the U.S. mail, certified and postage paid, or upon receipt ifpersonally delivered or sent by next-business-day
delivery via a nationally recognized overnight courier to the addresses set forth below. Landlord or Tenant may from time to
time designate any other address for this purpose by providing \vritten notice to the other party.
Site Number:
Site Name:
Market:
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If to Tenant. to:
T-Mobile
12920 SE 38th Street
Bellevue, W A 98006
Altn: PCS Lease Administrator
With a copy to: Altn: Legal Dept.
With a CODV to:
T-Mobile South LLC
3407 W. Dr. Martin Luther King Jr. Blvd.
Tampa, FL 33607
Altn: Lease Administration Manager
If to Landlord, to:
Vertex Development, LLC, a Delaware limited liability company
405 S. Dale Mabry Hwy, #244
Tampa, FL 33609-2820
With a COPY to:
d. QUiet Enloyment, [me and Authorltv. Landiord covenams and warrams to Tcnam that li) Landiord has fuii nght,
power and authority to execute this Lease; (ii) it has good and unencumbered title to the Property and the Tower free and clear of
any liens or mortgages, except those disclosed to Tenant and which will not interfcre with Tenant's rights to or use of the
Premises; and (iii) execution and performance of this Lease will not violate any laws, ordinances, covenants, or the provisions of
any mortgage, lease, or other agreement binding on Landlord. Landlord covenants that at all times during the term of this Lease,
Tenant's quiet enjoyment of the Premises or any part thereof shall not be disturbed as long as Tenant is not in default beyond any
applicable grace or cure period.
14. Environmental Laws, Landlord represents that it has no knowledge of any substance, chemical or waste
(collectively, "Hazardous Substance") on the Property that is identified as hazardous, toxic or dangerous in any applicable
federal, state or local law or regulation, Landlord and Tenant shall not introduce or use any Hazardous Substance on the
Property in \'iolation of any applicable law, Landlord shall be responsible for, and shall promptly conduct any investigation and
remediation as required by any applicable environmental laws, all spills or other releases of any Hazardous Substance not caused
solely by Tenant, that have occurred or which may occur on the Property. Each party agrees to defend, indemnify and hold
harmless the other from and against any and all administrative and judicial actions and rulings, claims, causes of action, demands
and liability (collectively, "Claims") including, but not limited to, damages, costs, expenses, assessments, penalties, fines, losses,
judgments and reasonable attorney fees that the indemnitee may suffer or incur due to the existence or discovery of any
Hazardous Substances on the Property or the migration of any Hazardous Substance to other properties or the release of any
Hazardous Substance into the environment (collectively, "Actions"), that relate to or arise from the indemnitor's activities on the
Property. Landlord agrees to defend, indemnify and hold Tenant harmless from Claims resulting from Actions on the Property
not caused by Landlord or Tenant prior to and during the Initial Term and any Rcncwal Term of this Lease. The
indemnifications in this section specifically include, without limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any governmental authority. This Section 14 shall
survive the termination or expiration of this Lease. .
15. Assignment and Subleasing. Tenant shall have the right to assign or otherwise transfer this Lease and the
Easements (as defined above) to any person or business entity whieh is authorized pursuant to and FCC licensed to, operate a
wireless communications business, is a parent, subsidiary or affiliate of Tenant, is merged or consolidated with Tenant or
purchases more than fifty percent (50%) of either an Q\.vnership interest in Tenant or the assets of Tenant in the "Metropolitan
Trading Area" or "Basic Trading Area" (as those terms are defined by the FCC) in which the Property is located. Upon such
assignment, Tenant shall be relieved of all liabilities and obligations hereunder and Landlord shall look solely to the assignee for
performance under this Lease and all obligations hereunder. Tenant may sublease the Premises, upon written notice to Landlord.
Tenant may otherwise assign this Lease upon ,witten approval of Landlord, which approval shall not be unreasonably delayed,
withheld, conditioned or denied.
Additionally, Tenant may, upon notice to Landlord, mortgage or grant a security interest in this Lease and the Antenna
Facilities, and may assign this Lease and the Antenna Facilities to any mortgagees or holders of security interests, including their
successors or assigns (collectively "Mortgagees"), provided such Mortgagees agree to be bound by the terms and provisions of
this Lease. In such event, Landlord shall execute such consent to leasehold financing as may reasonably be required by
Mortgagees. Landlord agrees to notify Tenant and Tenant's Mortgagees simultaneously of any default by Tenant and to give
Mortgagees the same right to cure any default as Tenant or to remove any property of Tenant or Mortgagees located on the
Premises, except that the cure period for any Mortgagees shall not be less than thirty (30) days after receipt of the default notice,
as provided in Section 9 of this Lease. All such notices to Mortgagees shall be sent to Mortgagees at the address specified by
Tenant. Failure by Landlord to give Mortgagees such notice shall not diminish Landlord's rights against Tenant, but shall
preserve all rights of Mortgagees to cure any default and to remove any property of Tenant or Mortgagees located on the
Premises as provided in Section 17 of this Lease,
16. Successors and Assil!tls. This Lease and the Easements granted herein shall run with the land, and shall be binding
upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns.
17. Waiver of Landlord's Lien. Landlord hereby waives any and all lien rights it may have, statutory or otherwise,
concerning the Antenna Facilities or any portion thereof, which shall be deemed personal property for the purposes of this Lease,
Site Number.
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whether or not the same is deemed real or personal property under applicable laws, and Landlord gives Tenant and Mortgagees
the right to remove all or any portion of the same from time to time, whether before or after a default under this Lease, in
Tenant's and/or Mortgagee's sole discretion and without Landlord's consent.
18. Miscellaneous.
(a) The prevailing party in any litigation arising hcreunder shall be entitled to its reasonablc attorneys' fees and court
costs, including appeals, if any.
(b) Each party agrees to furnish to the othcr, within twenty (20) days after request, such truthful estoppel information as
the other may reasonably request.
(c) This Lease constitutes the entire agreement and understanding of the parties, and supereedes all offers, negotiations
and other agreements, with respect to the subject matter and property covered by this Lease.
(d) Each party agrees to cooperate with the other in executing any documents (including a Memorandum of Lease in
substantially the form attached hereto as Exhibit C necessary to protect its rights or use of the Premises. The Memorandum of
Lease may be recorded in place of this Lease, by either party. In the event the Property is encumbered by a mortgage or deed of
trust, Landlord agrees, upon request of Ten ant, to obtain and furnish to Tenant a non-disturbance and attornment agreement for
each such mortgage or deed of trust, in a form reasonably acceptable to Tenant. Tenant may obtain title insurance on its interest
in the Premises. Landlord agrees to execute such documents as the title company may require in connection therewith.
(e) This Lease shall be construed in accordance with the laws of the state in which the Property is located.
(f) If any term of this Lease is found to be void or invalid, such finding shall not affect the remaining terms of this
Lease, which shall continue in full force and effect. The parties agree that if any provisions are deemed not enforceable, they
shall be deemed modified to the extent necessary to make them enforceable. Any questions of particular interpretation shall not
be interpreted against the draftsman, but rather in accordance with the fair meaning thereof. No provision of this Lease will be
deemed waived by either party unless expressly waived in writing signed by the waiving party. No waiver shall be implied-by
delay or any other act or omission of either party. No waiver by either party of any provision of this Lease shall be deemed a
waiver of such provision with respect to any subsequent matter relating to such provision.
(g) The persons who have executed this Lease represent and warrant that they are duly authorized to execute this Lease
in their individual or representative capacity as indicated.
(h) This Lease may be executed in any number of counterpart copies, each of which shall be deemed an original, but all
of which together shall constitute a single instrument.
(i) All Exhibits referred to herein and any Addenda are incorporated herein for all purposes. The parties understand
and acknowledge that Exhibit A (the legal description of the Property) and Exhibit B (the Premises location within the Property),
may be attached to this Lease and the Memorandum of Lease, in preliminary form. Accordingly, the parties agree that upon the
preparation of final, more complete exhibits, Exhibits A, andlor B, as the case may be, which may have been attached hereto in
preliminary fonn, may be replaced by Tenant with such fina!, more complete exhibit(s). The terms of all Exhibits B."C
incorporated herein for all purposes.
(j) If Landlord is represented by any broker or any other leasing agent, Landlord is responsible for all commission fee
or other payment to such agent, and agrees to indemnify and hold Tenant harmless from all claims by such broker or anyone
claiming through such broker. If Tenant is represented by any broker or any other leasing agent, Tenant is responsible for all
commission fee or other payment to such agent, and agrees to indemnify and hold Landlord harmless from all claims by such
broker or anyone claiming through such broker.
The effective date of this Lease is the date of execution by the last party to sign (the "Effective Date").
Silt NUtrber:
Silt Name:
Markel:
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LANDLORD:
By:
Printed Name:
Its:
Date:
TENANT:
By:
Printed Name:
Its:
Date:
Site NIllI-btr.
Site Name:
Mark.l:
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T-Mobile South LLC
.~\ ' ~,,\ /\~~
Mike Ackroyd
DirectO\ Engineering & Operations
<-\ h\~\
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SITE NAME: Yon"" Tu;cawiJl>
SITE NUMBER:FL-ORLJ69
COMMUNICATION TOWER SUBLEASE AGREEMENT
S COMMUNICATION TOWER SUBLEASE AGREEMENT ("Agreement") dated and is effective as
~ , 2007, is between Clearwire US LLC, a Nevada limited liability company
're" or "Tenant"), and Vertex Development, LLC, a Delaware limited liability company ("Landlord").
For good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Premises.
1.1 Landlord owns a parcel of land ("Land") and a telecommunications tower ('Tower") located in
the City of Winter Springs, County of Seminole, State of Florida, commonly known as Tuscawilla Country Club
located at 1500 Winter Springs Boulevard, Winter Springs Florida (APN: 31-20-31-5BB-OOOO-O04A). The Tower
and the Land are collectively referred to herein as the "Property." The Land is more particularly described in
Exhibit A annexed hereto. Subject to the provisions of Paragraph 2 below ('''Effective DatelDue Diligence
Period"), Landlord hereby leases to Clcarwire and Clearwire leases from Landlord approximately Forty-Nine (49)
square feet of Land and all access and utility easements necessary or desirable therefore (collectively, "Premises")
as may be described generally in Exhibit B annexed hereto.
1.2 The Premises are located on the Land leased to the Landlord under that certain prime lease
between Winter Springs Golf, LLC, as Prime Lessor, and Landlord, as Prime Lessee, dated as of January 6, 2006
("Prime Lease"), which is attached hereto and made a part hereof as Exhibit D. Notwithstanding anything to the
contraIy contained in this Agreement, if the Prime Lease requires Landlord (as the Prime Lessee thereunder) to
obtain Prime Lessor's prior written consent before subleasing or licensing space within Landlord's leased area,
then such consent shall be a condition precedent to this Agreement and to each of the parties' rights and
responsibilities set forth herein.
2. Effective DateIDue Diligence Period. This Agreement shall be effective on the date of full
execution hereof ("Effective Date"). Begiuning on the Effective Date and continuing until the Term
Commencement Date as defined in Paragraph 4 below ("Due Diligence Period"), Clearwire shall only be
permitted to enter the Property for the limited purpose of making appropriate engineering and boundary surveys,
inspections, and other reasonably necessary investigations and signal, topographical, geotechnical, structurcll and
environmental tests (collectively, "Investigations and Tests") that Clearwire may deem necessary or desirable to
determine the physical condition, feasibility and suitability of the Premises. In the event that Clearwire determines,
during the Due Diligence Period, that the Premises are not appropriate for Clearwire's intended use, or if for any
other reason, or no reason, Clearwire decides not to commence its tenancy of the Premises, then Clearwire shall
have the right to terminate this Agreement without penalty upon written notice to Landlord at any time during the
Due Diligence Period and prior to the Term Commencement Date. Landlord and Clearwire expressly acknowledge
and agree that Clearwire's access to the Property during this Due Diligence Period shall be solely for the limited
purpose of performing the Investigations and Tests, and that Cleanvire shall not be considered an owner or
operator of any portion of the Property, and shall have no ownership or control of any portion of the. Property
(except as expressly provided in this Paragraph 2), prior to the Term Commencement Date.
3. Use. The Premises may be used by Tenant1'or any lawful activity in connection with the
provisions of wireless communications services, including without limitation, the transmission and the reception of
radio communication signals and the construction, maintenance and operation of related communications facilities.
Landlord agrees, at no expense to Landlord, to cooperate with Tenant, in making application for and obtaining all
licenses, permits and any and all other necessary approvals that may be required for Tenant's intended use of the
Premises.
4. Tenn. The tem of this Agreement shall commence upon tbe date Tenant begins construction
of the Tenant Facilities (as defined in Paragraph 6 below) or thirty (30) days following the issuance of a Certificate
of Occupancy for the Property, whichever occurs first ("Tenn Commencement Date") and shall terminate on the
tenth (101h) anniversary of the Tem Commencement Date ("Tenn") unless otherwise terminated as provided
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SITE NAME: Vertex 'I'uscawiIIo
SITE NUMBER:FL-ORL16~
herein. This Agreement shall automatically be extended for four (4) successive five (5) year periods ('Renewal
Terms") on the same terms and conditions as set forth herein unless Tenant notifies Landlord of its intention not
to renew at least six (6) months prior to commencement of the succeeding ReneW3l Term.
Tenant shall be required to use Landlord's general contractor to complete tbeir installation at tbeir sole
cost and expense.
5. Rent Within fifteen (15) business days following the Term Commencement Date,
Tenant shall pay_ to Landlord as rent 1 per
month ('Renf') to be paid annually in advance. Rent for any fractional monlD attne beginning or at the end of the
Term Q! Ren~ Term mill be prorated. P~n!: sh:ill be F)~!e to L:lnd1crd :It ~05 So-..:th Dale ~"fahiJ Higlnvay,
Suite 244, Tampa, Florida 33609; Attention: Alan Ruiz. All of TenanCs monetary obligations set forth in this
Agreement are conditioned upon Tenant's receipt of an accumte and executed W-9 Form from Landlord. Rent
shall be increased on each anniversary of the Commencement Date by an amount equal to >ercent of the
Rent for the previous year.
Within thirty (30) days of the Commencement nlltP. TElnant shall cay to Landlord a one-time capital
contribution fee in the amount of
6. ImDrovements.
6.1 Tenant has the right to construct, maintain. install, repair, secure, remove and operate
on the Premises radio communications fucilities, including but not limited to utility lines, transmission lines, an ice
brldge(s), electronic equipment. tIauSmitting and receiving antennas, antp.nnll~ and equipment, a power generator
and generator pad. and supporting equipment and stroctnres therefore ("Tenaut Fadlities"). In connection
therewith, Tenant has the right to do all work neceswy to prepare and maintain the Premises for Tenant's
communications operations and to install utility lines and transmission lines connecting antennas to transmitters
and receivers. All of Tenant's construction and installation work shall be performed at Tenant's sole cost and
expense and in a good and wOPcmllnliKe manner. Title to the Tenant Facilities and any equipment placed on the
Premises by Tenant shall be held by Tenant or its lenders or assigns and are not fixtures. Tenant has the right to
remove the Tenant Facilities at its sole ~xpense on or before the expiration or earlier termination of this
Agreement, and Tenant shall repair any damage to the Premises c:aused by such removal. Upon the expiration or
earlier termination. of this Agreement, Tenant shall remove its Tenant Facilities, including but not limited to
antenna stIucture(s), building (s) (except footings), fixtures and all personal property and otherwise restore the
Premises to its original condition, reasonable wear and tear and casualty excepted..
7. Access and Utilities.
7.1 Landlord sball provide Tenant, Tenant's employees, agents, contractors, subcontractors
and assigns with access to the Premises tweoty.four (24) hours a day, seven (7) days a week, at no charge to
Tenant Landlord grants to Tenant, and Tenant's agents, employees and contractors, a non-exclusive right and
easement for pedestrian and vehicular ingress :md egress across the Property, and such right and easement may be
descn1>ed generally in Exlu"bit B.
7.2 Landlord shall nmintain all access roadways from the nearest public roadway to the
Premises in a manner sufficient to allow pedestrian and vehicular access at all times under normal weather
conditions. Landlord shall be responsible for maintaining and repairing such roadways. at its sole expense, except
for any damage caused by Tenant's use of such roadways.
7.3 Tenant shall have its own meter installed and be responsible for its own utility bills.
8. Interference. Tenant shall operate the Tenant Facilities in compliance with all Federal
Qunmunications Commission ('FCC") requirements including those prolu"biting interference to communications
facilities of Landlord or other lessees or licensees of the Property, provided that the installation and operation of
any such facilities predate the installation of the Tenant Facilities. Subsequent to the installation of the Tenant
Facilities, Landlord will not, and will not permit its lessees or licensees to, install new equipment on or make any
alterations to the Property or property contiguous thereto owned or controlled by Landlord, if such modifications
~1/~~/~~ 12:~~A P.~~8
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SITE NAME: Vertex Tuscawilla
SITE NUMBER:FL-ORLl69
are likely to cause interference with Tenant's operations. In the event interference occurs, Landlord agrees to use
best efforts to eliminate such interference in a reasonable time period. Landlord's failure to comply with this
paragraph shall be a material breach of this Agreement
9. Taxes. Tenant shall pay personal property taxes assessed against the Tenant Facilities and
Landlord shall pay when due, all real property taxes and all other taxes, fees and assessments attributable to the
Premises or this Agreement.
10. TerminatioIL
10.1 This Agreement may be terminated without further liability on thirty (30) days prior
written notice as follows; (i) by either party upon a default of any covenant or term hereof by the other party,
which default is not cured within sb..1y (60) days of receipt of written notice of default. except that this Agreement
shall not be terminated if the default cannot reasonably be cured "ithin such sixty (60) day period and the
defaulting party has commenced to cure the default within such sooty (60) day period and diligently pursues the
cure to completion; provided that the grace period for any monetary default is ten (10) days from receipt of written
notice. This Agreement may be terminated by Tenant without further liability for any reason or for no ceason,
provided Tenant delivers written notice of termination to Landlord prior to the Conunencement Date.
10.2 After the initiallcrm, this Agreement may also be terminated by Tenant without further
liability on sixty (60) days prior written notice if Tenant is unable to reasonably obtain or maintain any certificate,
license, permit, authority or approval from any governmental authority, thus, restricting Tenant from instalImg,
removing, replacing, maintaining or operating the Tenant Facilities or using the Premises in the manner intended
by Tenant.
11. Destruction or Condemnation. If the Premises or Tenant Facilities are damaged, destroyed,
condemned or transferred in lieu of condemnation, Tenant may elect to terminate this Agreement as of the date of
the damage, destruction, condemnation or tr3nsfer in lieu of condemnation by giving notice to Landlord no more
than forty-five (45) days following the date of such damage, destruction, condemnation or transfer in lieu of
condemnation. If Tenant chooses not to terminate this Agreement, Rent shall be reduced or abated in proportion to
the actual reduction or abatement of use of the Premises.
12. Insurance: Subrogation: and Indemnity.
12.1 Tenant shall provide Commercial General Liability Insurance in an aggregate 1;lmount of
One Million and No/IOO Dollars ($1,000,000.00). Tenant may satisfy this requirement by obtaining the
appropriate endorsement to any master policy of liability insurance Tenant may maintain.
12.2 Landlord and Tenant hereby mutually release each other (and their successors or
assigns) from liability and waive all right of recovery against the other for any loss or damage covered by their
respective first-party properly insurance policies for all perils insured thereunder. In the event of such insured loss,
neither party's insurance company shall have a subrogated claim against the other.
12.3 Landlord and Tenant shall each indemnify, defend and hold the other harmless from
and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' and
consultants' fees, costs and expenses) (collectively "Losses") arising from the indemniJYing party's breach of any
term or condition of this Agreement or from the negligence or willful misconduct of the indemnifying party or its
agents, employees or contractors in or about the Property. The duties described in this Paragraph 12.3 shall apply
as of the Effective Date of this Agreement and survive the termination of this Agreement.
13. Assignment. This Agreement may be sold, assigned or transferred by the Tenant without any
approval or consent of the Landlord to Tenant's lender(s) pursuant to a financing agreement, or to the Tenant's
principal, affiliates, subsidiaries of its principal; to any entity which acquires all or substantially all of Tenant's
assets in the market defined by the Federal Communications Commission in which the Property is located by
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SITE NAME: Vertex TU,CllWiD.
SITE NllMBEIlFL-ORU69
reason of a merger, acquisition or other business reorganization. As to other parties, this Agreement may not be
sold, assigned or transferred without the written consent of the Tenant, which such consent will not be
unreasonably withheld or delayed. Tenant may sublet the Premises within its sole discretion, upon notice to
Landlord. Any sublease that is entered into by Tenant shall be subject to the provisions of this Agreement and
shall be binding upon the successors, assigns, heirs and legal representatives of the respective parties hereto.
14. Title and Quiet Enjoyment.
14.1 Landlord represents and warrants that (i) it has full right, power, and authority to
execute this Agreement, (ll) Tenant may peacefully and quietly enjoy the. Premises and such access thereto,
provided !.hat Tenant is not in defauit hereunder after notice and expiration of ail cure periods, (iii) it has obtained
all necessary approvals and consents, and has taken all necessary action to enable Landlord to enter into this'
Agreement and allow Tenant to install and operate the Facility on the Premises, including without limitation,
approvals and consents as may be necessary from other tenants, licensees and occupants of Landlord's Propert)',
and (iv) the Property and access rights are free and clear of all liens, encumbrances and restrictions except those of
record as of the Effective Date.
14.2 Tenant has the right to obtain a title report or commitment for a leasehold title policy
from a title insurance company of its choice.
15. Environmental. As of the Effective Date of this Agreement: (1) Tenant hereby represents and
warrants that it shall not use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon or
affecting the Property in violation of any applicable law or regulation, and (2) Landlord hereby represents and
warrants tl13t (i) it has no knowledge of the presence of any Hazardous Material located in,. on, under, upon or
affecting the Property in violation of any applicable law or regulation; (ii) no notice has been received by Of' on
behalf of Landlord from any governmental entity or any person or entity claiming any violation of any applicable
environmental law or regulation in, on, under, upon or affecting the Property; and (iii) it will not pemtit itself or
any third party to use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon, or
affecting the Property in violation of any applicable law or regulation. Without limiting Paragraph 12.3, Landlord
and Tenant shall each indetunify, defend and hold the other harmless from and against all Losses (specifically
including, without limitation, attorneys', engineers', consultants' and experts' fees, costs and ex-penses) arising
from (i) any breach of any representation or warranty made in this Paragraph 15 by such party; and/or (ii)
environmental conditions or noncompliance with any applicable law or regulation that result, in the case of
Tenant, from operations in or about the Property by Tenant or Tenant's agents, employees or contractors, and in
the case of Landlord, from the ownership or control of, or operations in or about, the Property by Landlord or
Landlord's predecessors in interest, and their respective agents, employees, contractors, tenants, guests or other
parties. The provisions of this Paragraph 15 shall apply as of the Effective Date of this Agreement and survive
temtination of this Agreement "Hazardous Material" means any solid, gaseous or liquid wastes (including
hazardous wastes), regulated substances, pollutants or contaminants or terms of similar import, as such tenDs are
defined in any applicable environmental law or regulation, and shall include, without limitation, any petroleum or
petroleum products or by-products, flammable explosives, radioactive materials, asbestos in any form,
polychlorinated biphenyls and any other substance or material which constitutes a threat to health, safety, property
or the environment or which has been or is in the future determined by any governmental entity to be proluoited,
limited or regulated by any applicable environmental law or regulation.
16.
Subordination of Landlord's Lien. Landlord hereby subordinates any and all lien rights it may have, statutory or
otherwise concerning the Tenant Facilities or any portion thereof which shall be deemed personal property for the
purposes of this Agreement, whether or not the same is deemed real or personal property under applicable laws,
and Landlord gives Tenant and Mortgagees the right to remove all or any portion of the same from time to time,
whether before or after a default under this Agreement. in Tenant's and/or Mortgagee's sole discretion and without
Landlord's consent.
17. Notices. All notices, requests, demands and other communications hereunder shall be in writing
and shall be deemed given if personally delivered or mailed, certified mail. return receipt requested, or sent by for
next-business-day deliveIy by a nationally recognized overnight carrier to the following addresses:
01/00/00 12:00A P.005
..-
sm:: NA.'dE: Vertex lUscawilla
SITE NUMBER:fL-ORLI69
If to Tenant, to: With a copy to: If to Landlord, to:
Clearwire US LLC Clearwire US LLC Vertex Development, LLC
Attn: Site Leasing Attention: Legal Department Attention: Alan Ruiz
4400 Carillon Point 4400 Carillon Point 405 S. Dale Mabry Highway
Kirkland, WA 98033 Kirkland, W A 98033 Suite 244
Telephone: 425-216-7600 Telephone: 425-216-7600 Tampa, Florida 33609
Fax: 425-216-7900 Fax: 425-216-7900 Telephone: (813) 335-4768
Landlord or Tenant may from time to timc designate any other address for this purpose by written notice to the
other party. All notices hereunder shall be decmed receIved upon actual receipt or refusal to accept delivery.
18. Marking and Lighting. Landlord shall be responsible for compliance with all marking and
lighting requirements of the Federal Aviation Administration ("FAA") and the FCC. Should Tenant be cited
because the Property is not in compliance and should Landlord fail to cure the conditions of noncompliance,
Tenant may proceed to cure the conditions of noncompliance at Landlord's expense, which amounts may be
deducted from (and offset against) the Rent and any other charges or amounts due, or coming due, to Landlord. .
19. Miscellaneous.
19. 1 If Tenant is to pay Rent to a payee other than the Landlord, Landlord shall notify Tenant
in advance in writing ofthc payee's name and address.
19.2 The substantially prevailing party in any legal claim arising hereunder shall be entitled
to its reasonable attorney's fees and court costs, including appeals, if any.
19.3 If any provision of the Agreement is invalid or unenforceable with respect to any party,
the remainder of this Agreement or the application of such provision to persons other than those as to whom it is
held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
19.4 Terms and conditions of this Agreement which by their sense and context survive the
termination,. cancellation or expiration of this Agreement will so survive.
19.5 This Agreement shall be governed under law of the State in which the Premises are
located, and be binding on and inure to the benefit of the successors and permitted assignees of the respective
parties.
19.6 A Memorandum of Agreement in the form attached hereto as Exhibit C may be recorded
by Tenant confirming the (i) effectiveness of this agreement, (ii) expiration date of the Tenn, (Hi) the duration of
any Renewal Terms, and/or other reasonable terms consistent with this Agreement.
19.7 All Exhibits referred herein are incorporated herein for all purposes.
19.8 Landlord shall make a diligent and good faith effort to obtain a NondistU1bance
Agreement for the benefit of Tenant from each lender with a security interest recorded upon the title to the Site at
the time of execution of this Agreement
19.9 This Agreement constitutes the entire Agreement between the parties, and supersedes all
understandings, offers, negotiations and other leases concerning the subject matter contained hereiIL There are no
representations or understandings of any kind not set forth herein. Any amendments, modifications or waivers of
any of the terms and conditions of this Agreement must be in writing and executed by both parties.
19.10 Landlord agrees not to disclose, without the written consent of Tenant., any of the terms
of this Agreement or any other written agreement between the parties relating to the privileges granted herein,
except as required by governmental authority, in which case Landlord shall inform Tenant prior to divulging such
infonnation.
01/00/00 12:00A P.006
SITE NAME: Vert"" 'l\Ee:l\\1IIa
SITE NUMBEltFJ-.ORLI69
IN WITNESS WHEREOF, the parties have entered into this Agreement effective upon the date of
execution by all parties.
LANDLORD:
Vertex Development, LLC, a Delaware limited liability
company
By'
wa~~
-~~~ ~
Alan Ruiz
Name:
~r-
Title: Manager
Date: (p II Z/ b 7
I I
TaxI.D.: ~1... 14Cf4dr.;
'My -A. Cfj(JhRGJ1
TENANT:
Name
,lOhn A Siorch
\!\~ rJiesident - Net-Nork Deployment.
Print Name:
Clearwire US LLC, a Nevada limited liability company
By:
C-.. ~
Title:
Date: 0 f. '2 <' -0 1
01/00/00 12:00A P.007
--
SITE NA.ldE: Vertex Tusc...-i11a
SITE NUMBER:F~ORLI69
Vertex Development, LLC
STAlE OF FLORIDA )
) ss.
COUNTY OF HILLSBOROUGH )
I cert.ifY that I know or have satisfactory evidence that Alan Ruiz is the person who appeared before me,
and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the Manager of Vertex Development, LLC, a Delaware limited liability
company, to be the free and vo!unta.nr ~f such party fer the uses and pu....rpcses mentioned :n the inst.."Jrrlcnt.
Dated: b(P
NotalY Public
Print Name Amv . ochran
My commission expires Julv 1. 2009
.$'."""" AM
$:~.''':~<'' V A. COCHRAN
~. .i Commission /I DO 417630
~~., ~1 MV Commission Expires
"'''lit:(.' July 01. 2009
(Use this space for notary stamp/seal)
STATE OF WASHINGTON
COUNTY OF KING
)
) 55.
)-
I certify that I know or have satisfactory evidence that John A. Storch is the person who appeared before
me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute
the instnunent and acknowledged it as the VP Network Deployment of Clearwire US LLC, a Nevada limited
liability company, to be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument
Dated:
Notary Public
Print Name
My commission expires
...........~~\....,.\'\~\\~.\t.
...."'::-~.~ ~~~ss~tf:/..
lf~~::~;;:::;:~\~
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Ilt' I.: ~\\'\\\''''''''''''''~-1\~~
'IIII\OF WA5\~.........
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(Use this space for notary stamp/seal)
01/00/00 1Z:00A P.001
.----
COM1VlUNICATIONS SITE LEASE AGREEMENT
TIllS COMMUNICATIONS SITE LEASE AGREEl\tillNT ("Lease
Agreement") dated as of , is made by and between Royal Street
Communications, LLC, a Delaware limited liability company ("Lessee") and Vertex Development,
LLC, a Delaware limited liability company ("Lessor").
RECITALS
This Lease Agreement IS entered into based upon the follm,ving facts. circumstances and
understandings:
A. Lessor leases certain real property legally described in Exhibit "A" attached hereto
and commonly known as FL5032; 1500 Winter Springs Blvd. Winter Springs, Florida 32708 Assessor's
Parcel Number 31-20315BB-OOOO-004A ("Lessor's Real Property"). Lessee desires to lease a portion of
Lessor's Real Property with any necessary easements over other pOltions of Lessor's Real Property
and/or shared use of Lessor's easements over other real propclt)' necessary for Lessee's access and
utilities to the leased area (altogether the "Premises"), as described on Exhibit "8" attached hereto.
Lessor represents and 'rvarrants that it has the right to grant the rights set forth herein and that it has I'LLll
rights of ingress to and egress from the Premises from a public roadway.
B. Lessee is a communications carrier that desires to construct and operate a wireless
communications site at the Premises as part of its communications network.
C. 8ased on the Premist's set forth herein and on the terms and conditions set forth
below, Lessor is willing to lease the Premises to Lessee for Lessee's proposed use subject to the terms
and conditions ofthis Lease Agreement.
WHEREFORE, in consideration of the Premises set forth above and the terms and
conditions set fOith herein, the parties, intending to be legally bound, hereto agree as fo!!o\vs:
1. Grant of Lease. Lessor hereby leases to Lessee the Premises for Lessee's proposed
use, subject to the following terms and conditions for the Tenn.
2. Permitted Uses. The Premises may be used by Lessee for the operation of a wireless
cOlllmunications site. Under this Lease Agreement, Lessee may install, place, use and operate on the
Premises such antennas, radio transmitting and receiving equipment, conduits, wires, batteries, back-liP
gencrators: utility Iincs and facilities, supporting structures, telephone facilities, and related equipment
(collectively "Lessee's Facilities") as Lessee deems necessary for the operation of its wireless
communications site at the Premises, Further, Lessee may perform construction, maintenance, repairs,
additions to, and replacement of Lessee's Facilities as necessary and appropriate for its ongoing business
and has the right to do <III work necessary to prepare, modify and maintain the Premises to accommodate
Lessee's Facilities and as required for Lessee's communications operations at the Premises.
Page 1 of 1 7
Site No.: ORD210
Site Address: 1500 Winter Springs Blvd. Winter Springs. Florida 32708
EXECUTION COpy 7.10.06
EXECUTION COpy
01/00/00 12:00A P.002
3. Conditions Precedent: Prior Approvals. This Lease Agreement is conditioned upon
Lessee obtaining all governmental licenses, permits and approvals enabling Lessee to construct and
operate wireless communications facilities on the Premises without conditions which are not standard or
typical for premises where wireless communications facilities are located. Lessor agrees to cooperate
with Lessee's reasonable requests for Lessor's signatures as real property owner on permit applications,
for allowing site inspections by governmental agencies required in connection with reviewing permit
applications, and for assistance in obtaining such necessary approvals, provided that such cooperation
and assistance shall be at no expense to Lessor.
4. Term. The term of this Lease Agreement ("Term") shall be Seven (7) years.
commencing with the issuance of a local governmental building permit allowing Lessee to construct
Lessee's Facilities on the Premises or twelve (12) months from the date of full execution of this Lease
Agreement, whichever occurs first ("Commencement Date"). Lessee shall promptly deliver written
notice to Lessor of the Commencement Date. Lessee shall have the right to extend the Term of this
Lease Agreement for four (4) additional terms (each a "Renewal Term") of five (5) years each. The
terms and conditions for each Renewal Term shall be the same terms and conditions as in this Lease
Agreement, except that the Rent shall be increased as set forth hereinbelow. This Lease Agreement shall
automatically be extended for each successive five (5) year Renewal Term unless Lessee notifies Lessor
in writing of Lessee's intention not to extend this Lease Agreement at least thirty (30) days prior to the
expiration of the first Term or any Renewal Term.
5. Rent. Within fifteen (15) days of the Commencement Date. Lessee shall pay Lessor..as
rent, the sum of fl'. .. .. ) per month. Rent shall be payable on the
first day of each month, in advance, to Lessor or Lessor's alternate payee specified in Section 22, Notices
and Deliveries. If the Commencement Date of this Lease Agreement is other than the first day of a
calendar month, Lessee may pay on the first day of the Tenn the prorated Rent for the remainder of the
calendar month in which the Term commences, and thereafter Lessee shall pay a full month's Rent on the
first day of each calendar month, except that payment shall be prorated for the final fractional month of
this Lease Agreement, or if tliis Lease Agreement is terminated before the expiration of any month for
which Rent should have been paid. Rent shall be increased annually, on the anniversary of the
Commencement Date b) of the previous year's Rent.
6. Due Dili2:encc Contin2:encv and Pre-Commencement Date Access to Premises.
Lessee shall have the right (but not t.lJe obligation) at any time following the full execution of this Lease
Agreement and prior to the Commencement Date, to enter the Premises for the purpose of making
necessary inspections, taking measurements and conducting engineering surveys (and soil tests where
applicable) and other reasonably necessary tests to determine the suitability of the Premises for Lessee's
Facilities ("Due Diligence")) and for the purpose of preparing the Premises for the installation or
construction of Lessee's Facilities. During any Due Diligence activities or pre-construction work, Lessee
shall have insurance which covers such activities as set forth in Section16, Insurance. Lessee will notify
Lessor of any proposed tests, measurements or pre-construction work and will coordinate the scheduling
of such activities with Lessor. If in the course of its Due Diligence Lessee determines that the Premises
are unsuitable for Lessee's contemplated use, then Lessee shall have the right to tenninate this Lease
Agreement prior to the Commencement Date by delivery of written notice thereof to Lessor as set forth
in Section 13, Tennination.
Page 2 of 17
Site No.: ORD210
Site Address: 1500 Winter Springs Blvd. Winter Springs.. Florida 32708
EXECUTION COpy 7. 10.06
01/00/00 12:00A P.003
.-'
7. Onl!oine: Access to Premises. Throughout the Term and any Renev,'al Term of this
Lease Agreement, Lessee shall have the right of access without escort to the Premises for its employees
and agents twenty-four (24) hours a day, seven (7) days per week, at no additional charge to Lessee. In
exercising its right of access to the Premises herein, Lessee agrees to cooperate with any reasonable
security procedures utilized by Lessor at Lessor's Real Propelty and fUlther agrees not to unduly disturb
or interfere with the business or other activities of Lessor or of other tenants or occupants of Lessor's
Real Property. Lessor shall maintain all existing access roadways or drive\vays extending from the
nearest public roadv-/ay to the Prenlis~s in a manner stlff1~icnt to ~l!C'I'''' -18~ Lesse~'s 8.ccess to the
Premises. Lessor shall be responsible for maintaining and repairing such roadways and driveways at
Lessor's sole expense, except for any damage caused by Lessee's use of such roadways or driveways. If
Lessee causes any such damage, Lessee shall promptly repair the same at its sole expense. Except those
constructed by Lessee, Lessor, not Lessee, shall be responsible for the maintenance and compliance with
laws of all towers and structures located on the Premises, including compliance with Part 17 of the
Federal Communications Commissions' Rules.
8. Lessee's Work. Maintenance and Repail-s. All of Lessee's construction and
installation work at the Premises shall be perfonned at Lessee's sole cost and expense and in a good and
workmanlike manner. Lessee shall submit copies of the site plan and specifications to the Lessor for prior
approval, which approval will not be unreasonably withheld, conditioned or delayed. Lessor shall give
such approval or provide Lessee with its requests for changes within five (5) business days of Lessor's
receipt of Lessee's plans. If Lessor does not provide such approval or request for changes within sUG.h
five (5) business day period, Lessor shall be deemed to have approved the plans. Lessor shall not be
entitled to receive any additional consideration in exchange for giving its approval of Lessee's plans.
Lessee shall maintain Lessee's Facilities and the Premises in neat and safe condition in compliance with
all applicable codes and governmental regulations. Lessee shall not be required to make any repairs to
the Premises except for damages to the Premises caused by Lessee, its employees, agents, contractors or
subcontractors. Upon the expiration, cancellation or termination of this Lease Agreement, Lessee shall
surrender the Premises in good condition, less ordinary wear and tear; hO\vever, Lessee shall be required
to remove any foundation supports for Lessee's Facilities which have been installed by Lessee.
9. Title to Lessee's Facilities. Title to Lessee's Facilities and any equipment placed on
the Premises by Lessee shall be held by Lessee. All of Lessee's Facilities shall remain the properLy of
Lessee and are not fixtures. Lessee has the right to remove all Lessee's facilities at its sole expense on
or before the expiration or termination of this Lease Agreement. Lessor acknowledges that Lessee may
enter into financing arrangements including promissory notes and financial and security agreements for
the l"inancing of Lessee's Facilities (the "Collateral") with a third palty financing entity and may in the
future enter into additional financing arrangements with other financing entities. In connection
therewith, Lessor (i) consents to the installation of the Collateral to the extent that the Collateral is part
of the approved Lessee's Facilities; (ii) disclaims any interest in the Collateral, as fixtures or otherwise,
whether arising at law or otherwise, including, but not limited to any statutory landlord's lien; and (iii)
agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress
for any Rent due or to become due and that such Collateral may be removed at any time without recourse
to legal proceedings.
10. Utilities. Lessee shall have the right to install utilities, at Lessee's expense, and to
improve the present utilities on or near the Premises (including, but not limited to the installation of
emergency back-up power). Subject to Lessor's approval of the location, which approval shall not be
Page 3 of 17
Site No.: ORD210
Site Address: 1500 Winter Springs Bl vd. Winter Springs, Florida 32708
EXECUTION COpy 7.10.06
01/00/00 12:00A P.004
'.......-
unreasonably withheld, conditioned, or delayed, Lessee shall have the right to place utilities on (or to
bring utilities across) Lessor's Real Property in order to service the Premises and Lessee's Facilities,
Upon Lessee's request, Lessor shall execute recordable easement(s) evidencing this right. Lessee shall
fully and promptly pay for all utilities furnished to the Premises for the use, operation and maintenance
of Lessee's Facilities. Upon Lessee's request, Lessor shall allow Lessee to install sub-metering
equipment on existing Lessor utility service(s). Lessee agrees to install, at Lessee's cost, the required
equipment, meters and connections and will reimburse Lessor for Lessee's use of utilities at a rate equal
to Lessor's unit cost for the utilities. Lessee shall pay the cost of utility service provided to the Premises
and attrinlltanlEl tn r ,('<;<;('("" ll"f~ ("T Itilitv ('n~m'('''\ T ,('""ee "h~l1 n~v the e<:tim;]tecl co<;t of the lJtililv
- - - - - - - - -- - - - - - - .... - . ..~ -,.. U'.I . - - - . - - ... ,- .,." . - . - .. -.- . . - . . ,.,
Charge monthly in advance. The parties estimate the Utility Charge at the commencement of construction
to be TBD ($0.00) per month. During the teon of this Lease Agreement, at Lessor's request (which
request shall not be 1110re frequent than once every twelve months), Lessee shall calculate the actual
Utility Charge for the immediately preceding twelve (12) months based on the readings from the
privately installed sub-meter at Lessor's property. If the actual Utility Charge varies from the estimated
Utility Charges paid, the parties shall reconcile past payments of utility charges and adjust future
estimates oftha Utility Charge to reflect Lessee's actual usage.
11. Interference with Communications. Lessee's Facilities and operations shall not
interfere with the communications configurations, ti'equencies or operating equipment which exist on
Lessor's Real Property on the effective date of this Lease Agreement ("Pre-existing Communications"),
and Lessee's Facilities and operations shall comply \vith all non-interference rules of the Federal
Communications Commission ("FCC"). Upon written notice from Lessor of apparent interference b.y
Lessee with Pre-existing Communications, Lessee shall have the responsibility to promptly terminate
such interference or demonstrate to Lessor with competent infomlation that the apparent interference in
fact is not caused by Lessee's Facilities or operations. Lessor shall not, nor shall Lessor permit any other
tenant or occupant of any portion of Lessor's Real Property to, engage in any activities or operations
which interfere with the communications operations of Lessee described in Section 2, above. Such
interference with Lessee's communications operations shall be deemed a material breach by Lessor, and
Lessor shall have the responsibility to promptly terminate said interference. In the event any stich
interference does not cease promptly, the parties acknowledge that continuing interference will cause
irreparable injury to Lessee, and therefore Lessee shall have the right to bring a court action to enjoin
such interference or to terminate this Lease Agreement immediately upon notice to Lessor. Lessor agrees
to incorporate equivalent provisions regarding non-interference with Pre-existing Communications into
any subsequent leases, licenses or rental agreelnents \vith other persons or entities for any portions of
Lessor's Real Propert)'.
12. Taxes. Lessee shall pay personal property taxes assessed against Lessee's Facilities,
and Lessor shall pay when due all real property taxes and all other taxes, lees and assessments.
attributable to the Premises and this Lease Agreement.
13. Termination. This Lease Agreement may be terminated by Lessee em~ctjve
immediately without further liability by delivery of written notice thereof to Lessor prior to the
Commencement Date for any reason resulting from Lessee's Due Diligence, or if a title report obtained
by Lessee for Lessor's Real Property shows any defects of title or any liens or encumbrances which may
adversely affect Lessee's use of the Premises for Lessee's intended use, or for any other or no reason.
This Lease may be terminated without further liability on thirty (30) days prior written notice as follows:
(i) by either party upon a default of any covenant, condition, or term hereof by the other party, which
default is not cured within sixty (60) days of receipt of written notice of default; (ii) by Lessee if it does
Page 4 of 17
Site No.: ORD21O
Site Address: 1500 Winter Springs Blvd, Winter Springs, Florida 32708
EXECUTION COpy 7.10.06
01/00/00 12:00A P.005
..-----
not obtain licenses, permits or other approvals necessary to the construction or operation of Lessee's
Facilities ("Permits"), is unable to obtain such Permits without conditions which are not standard or
typical for premises where wireless communications facilities are located or is unable to maintain such
licenses, pcnnits or approvals despite reasonable efforts to do so; (iii) by Lessee if Lessee is unable to
occupy or utilize the Premises due to ruling or directive of the FCC or other govemmental or regulatory
agency, including, but not limited to, a take back of frequencies; or (iv) after the initial term by Lessee if
Lessee determines that the Premises are not appropriate for its operations for economic, environmental or
technological reasons, including, without limitation, signal strength or interference. Other than as stated
here!!:., Lesser sha!! net have the right to terminate, revoke or c;1nccI this Lcrrsc .\grecincnt.
14. Destruction of Premises. If the Premises or Lessor's Property is destroyed or
damaged so as in Lessee's judgment to hinder its effective use of Lessor's Pro petty for the ongoing
operation of a wireless communications site, Lessee may elect to terminate this Lease Agreement without
further liability of Lessee as of the date of the damage or destruction by so notifying Lessor no more than
thirty (30) days following the date of damage or destruction. In such event, all rights and obligations of
the parties which do not survive the termination of this Lease Agreement shall cease as of the date of the
damage or destruction.
15. Condemnation. If a condemning authority takes alt of Lessor's Real PropClty, or a
portion which in Lessee's reasonable opinion is sufficient to render the Premises unsuitable for Lessee's
ongoing operation of a wireless communications site, then this Lease Agreement shall terminate without
further liability of Lessee as of the date when possession is delivered to the condemning authority. Ln
any condemnation proceeding each party shall be entitled to make a claim against the condemning
authority for just compensation recoverable under applicable condemnation law. Sale of all or patt of the
Premises to a purchaser with the power of eminent domain in the face of the exercise of its power of
eminent domain shalt be treated as a taking by a condemning authority.
16. [nsurallcc. Lessee shall'maintain the following insurance: (1) Commercial General
Liability with limits of One Million Dollars ($ ) ,000,000.00) per occurrence, (2) Automobile Liability
with a combined single limit of One Million Dollars ($1,000,000.00) per accident, (3) Workers
Compensation as required by law, and (4) Employer's Liability with limits of One Million Dollars
($1,000,000.00) per occurrence. Lessor, at Lessor's sole cost and expense, shall procure and maintain on
the Property, bodily injury and property damage insurance with a combined single limit of at least One
Million Dollars ($1,000,000.00) per occurrence. Such insurance shall insure, on an occurrence basis,
against liability of Lessor, its employees and agents arising out of or in connection widl Lessor's use,
occupancy and maintenance of the Property. Each party shall be named as an additional insured on the
other's policy. Each party shall provide to the other a certificate of insurance evidencing the coverage
required by this para&'Taph within thirty (30) days of the Commencement Date. Each party waives any
rights of recovery against the other for injury or loss due to hazards covered by their propelty insurance,
and each party shall require such insurance pol icies to contain a waiver of recovery against the other.
17. Assh.!:nments or Transfers. Lessor may assign or transfer this Lease Agreement to any
person or entity without any requirement for prior approval by Lessee, provided that such assignee or
transferee agrees in writing to fulfill the duties and obligations of the Lessor in said Lease Agreement,
including the obligation to respect Lessee's rights to nondisturbance and quiet enjoyment ofthe Premises
during the remainder of the Term and any Renewal Term hereof. Lessee may assign or transfer this
Lease Agreement without prior approval by Lessor to any of Lessee's partners, shareholders, members,
subsidiaries, or affiliates, to any entity in which Lessee or any of its affiliates holds an ownership
Page 5 of 17
Site No.: ORD210
Site Address: 1500 Winter Springs I3lvd. Winter Springs. Florida 32708
EXECUTION COpy 7.10.06
01/00/00 1Z:00A
P.006
'~'
.--/"
interest, or to a person or entity acquiring by purchase, merger or operation of law a majority ofthe value
of the assets of Lessee. Lessee shall not assib'11 or transfer this Lease Agreement to any other person or
entity without the prior written approval of Lessor, which approval shall not be unreasonably withheld,
conditioned, or delayed. Notwithstanding anything to the contrary contained in this Agreement, Lessee may
assign, mOltgage, pledge, hypothecate or otherwise transfer without consent its interest in this Agreement to
any financing entity, or agent on behalf of any financing entity to whom Lessee (i) has obligations for
bOlTowed money or in respect of guaranties thereof, (ii) has obligations evidenced by loans, bonds,
debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit,
1,,<:t1,l'.ar4(' ",....f""ont"',..,,....t.'\(', ""'Inrl (';,""';1'":1.... (.",.,,,..;l:t;,.,co ,.......;..., .-0('..................+ ^.f' t""'11""~."''''''''+-:l:H' +1...i':'Io...o......+~
V~~l~~\,'-'~.J I..\.'-'....'......J-'\..-\..-~ll....v..l UJIU ,.)1...l.l...... ........j........~ '...)1 Ill. .'-'-.J~\"-""'l,.. v... bl.;Uo-JUIJI,..J,V.;;l L.!'''''~''''''V..
18. Subleases. Lessee shall not have the right to sublease or otherwise allow any other
communications provider to occupy space on any antenna structure or equipment enclosure installed by
Lessee at the Premises.
19. Nondisturbancc lInd Quiet Enioyment; Subordination; Estoppel Certificates.
(a) So long as Lessee is not in default under this Lease Agreement, Lessee shall be
entitled to quiet enjoyment of the Premises during the term of this Lease Agreement or any Renewal
Term, and Lessee ~hall not be disturbed in its occupancy and llse of the Premises.
(b) This Lease Agreement shall be subordinate to each and every deed of trust,
mortgage or other security instrument which may now or hereafter affect Lessor's Real Property and to
any renewals, extensions, supplements, amendments, modifications or replacements thereof. In
confirmation of such subordination, Lessee shall execute and deliver promptly any certiiicate of
subordination that Lessor may reasonably request, provided that such certificate acknowledges that this
Lease Agreement remains in full force and effect, recognizes Lessee's right to nondisturbance and quiet
enjoyment of the Premises so long as Lessee is not in default under this Lease Agreement: only contains
true and accurate statements and Lessee's iiabUity shall be capped at the remaining rent under this Lease
Agreement. If any mortgagee or lender succeeds to Lessor's interest in Lessor's Real Propelty through a
foreclosure proceeding or by a deed in lieu of foreclosure, Lessee shall attorn to and recognize such
successor as Lessor under this Lease Agreement.
(c) At any time upon not less than ten (10) days' prior written notice by Lessor,
Lessee shall execute, acknoV\:ledge and deliver to Lessor or any other part'j specified by Lessor a
statement in writing certifying that this Lease Agreement is in full force and effect, if true, and the status
of any continuing defaults under this Lease Agreement.
20. Indemnifications.
(a) Lessee's Indemnitv. Lessee hereby agrees to indemnify and hold Lessor and
Lessor's officers, directors, partners, shareholders, employees, agents, contractors or subcontractors
harmless from and against any and all losses, claims, liabilities, damages, costs and expenses (including
reasonable attorney's fees and costs) and injuries (including personal injuries or death) arising from or in
connection with Lessee's use, operation, maintenance or repair of Lessee's Facilities at the Premises or
access over Lessor's Real Property or Lessee's shared llse of Lessor's easements for access to the
Premises, except those resulting from the negligence or willful misconduct of Lessor or Lessor's officers,
directors, partners, shareholders, employees, agents, contractors or subcontractors.
Page 6 of 17
Site No,: ORD210
Site Address: 1500 Winl!.:r Springs Blvd. Winter Springs. Florida 3270g
EXECUTION COpy 7.1 OJJ6
01/00/00 12:00A P.007
.--
(b) Lessor's Indemnity. Lessor hereby agrees to indemnify and hold Lessee and
Lessee's officers, directors, partners, shareholders, employees, agents, contractors or subcontractors
harmless from and against any and all losses, claims, liabilities, damages, costs and expenses (including
reasonable attorney's fees and costs) and injuries (including personal injuries or death) arising from or in
connection with Lessor's use, operation, maintenance or repair of improvements on Lessor's Real
Property, Lessor's shared use of easements for access to Lessor's Real Property, any violation of
governmental regulations relating to the Premises and any towers used by Lessee (including the lighting
or painting for aviation pathways), except those resulting from the negligence or willful misconduct of
Lessee or Lessee's officers, directors, partners, shareh0k!ers, enlp!0)'~es) Rgents; c.ontraetofs or
subcontractors.
(c) Survival of Indemnity Provisions. The indemnity provisions of this section
shall survive the expiration, cancellation or expiration of this Lease Agreement.
21. Hazardous IVIaterhlls. Lessee agrees that it will not use, generate, store or dispose of
any Hazardous Material on, under, about or within the Lessor's Real Property in violation of any law or
regulation. Lessor represents, warrants and agrees (1) that neither Lessor nor, to Lessor's knowledge, any
third party has used, generated, stored or disposed of, or permitted the use, generation, storage or
disposal of, any Hazardous Material (defined below) on, under, about or within Lessor's Real Property in
violation of any law or regulation, and (2) that Lessor will not, and will not permit any third pm1y to use,
generate, store or dispose of any Hazardous Material on, under, about or within Lessor's Real Property in
violation of any law or regulation. Lessor and Lessee each agree to defend, indemnify and hold hannle~s
the other and the other's partners, affiliates, agents and employees against any and all losses, liabil ities,
claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any
representation, warranty or agreement contained in this paragraph. As used in this paragraph,
"Hazardous Material" shall mean petroleum or any petroleum product, asbestos, any substance known by
the state in which Lessor's Real Property is located to cause cancer and/or reproductive toxicity, and/or
any substance, chemical or waste that is identitied as hazardous, toxic or dangerous in any applicable
federal, state or local law or regulation. This paragraph shall survive the termination of this Agreement.
22. Notices and Deliveries. Any notice or demand required to be given herein shall be
made by certified or registered mail, return receipt requested, confirmed f,LX, or reliable overnight
delivery service to the address of the respective parties set forth below:
Lessor:
Vertex Development, LLC
405 S. Dale Mabry Hwy., #244
Tampa, FL 33609-2820
AUn: Alan Rui;.~
Telephone: 813 335-4768
Facsimile: 813 436-5674
Federal Taxpayer JD Number: 37-1494273
Lessee:
Royal Street Communications, LLC
7557 Rambler Road. Suite 700
Dallas, Texas 75231
Attn: Property Manager
Telephone: 214-265-6509
Facsimile: 214-265-6510
Copy to: Metro PCS
Attn: Leasing/Zoning Manager
511 South US I-hvy 301
Tampa, FL 33619
813-830-5500
Page 7 of 17
Site No.: ORD210
Site Address: 1500 Winter Springs Blvd. Winter Springs. Florida 32708
EXECUTION COPY 7.10.06
01/00/00 12:00A P.008
"-,,'
Lessor or Lessee may from time to time designate any other address for notices or deliveries by written
notice to the other party.
23. Miscellaneous.
unenforceable by a court of corr~petent jurisdict:on \\'1th respect to any party, the remainder of this Lease
(a) Severability. If any provision of the Lease Agreement is held to be invalid or
Agreement or the application of'such provision to persons other than those as to whom it is held invalid
or unenforceable shall not be affected, each provision of this Lease Agreement shall be valid and
enforceable to the fullest extent permitted by law, and the parties shall negotiate in good faith to amend
this Lease Agreement to retain the economic effect ofthe invalid or unenforceable provisions.
(b) Bindill~ Effect. Each party represents and warrants that said party has fui!
power and authority, and the person(s) executing this Lease Agreement have full power and authority, to
execute and deJiverthis Lease Agreement, and that this Lease Agreement constitutes a valid and binding
obligation of each party, enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting (he
enforcement of creditor's rights generally and by general equitable principles (whether enforcement is
sought in proceedings in equity or at law). This Lease Agreement shall be binding on and inure to the
benetit of tile successors and permitted assignees of the respective parties.
(c) Waivers. No provision of this Lease Agreement shall be deemed to have been
waived by a pa11y unless the waiver is in writing and signed by the party against whom enforcement of
the waiver is attempted. No custom or practice which may develop between the parties in the
implementation or administration of the terms of this Lease Agreement shall be construed to waive or
lessen any right to insist upon strict perfontIance of the terms of this Lease Agreement.
(d) Governin~ La\'r'. This Lease shall be governed by and construed in accordance
with the laws of the State in which the Premises are located.
(e) Attorneys' Fees and Costs. The prevailing party 111 any legal claim arising
hereunder shaH be entitled to its reasonable attorneys' fees and court costs.
(I) Survival. Telms and conditions of this Lease Agreement which by their sense
and context survive the termination, cancellation or expiration of this Lease Agreement will so survive,
(g) Memorandum of Lease. Lessor acknowledges that (l Memorandum of
Agreement substantially in the form annexed hereto as Exhibit C will be recorded by Lessee in the Official
Records of the County where the Property is located.
(h) Entire Ae:reement; Amendments. This Lease Agreement constitutes the entire
agreement and understanding between the parties regarding Lessee's (ease of the Premises and
supersedes all prior and contemporaneolls offers, negotiations and other agreements conceming the
subject matter contained herein. There are no representations or understandings of any kind not set forth
herein. Any amendments to this Lease Agreement mllst be in writing and executed by duly authorized
representatives of both parties.
Page 8 of 17
Site No.: OR02\O
Site Address: 1500 Winter Springs Blvd. Winter Springs, Florida 32708
EXECUTION COpy 7.10,06
01/00/00 12:00A P.009
'--"'
.-..-'
(i) No Presumptions Reeardine Preparation of I"ease Aereement. The parties
acknowledge and agree that each of the parties has been represented by counselor has had full
opportunity to consult with counsel and that each of the palties has paIticipated in the negotiation and
drafting of this Lease Agreement. Accordingly it is the intention and agreement of the parties that the
language, tenns and conditions of this Lease Agreement are not to be construed in any way against or in
favor of any party hereto by reason of the roles aI1d responsibilities of the parties or their counsel in
connection with the preparation of this Lease Agreement.
ISIGNA TURE PAGE FOLLOWSj
Site No.: ORD210
Site Address: 1500 V'linter Springs Blvd. Winler Springs, Florida 32708
EXECUTION COPY 7.10.06
Page 9 of 17
----.------.---.-.---------.....---..-----..-..-..-....- ...--..--.--..-------...---.-..-.-..-.-...-.--.-...---....-----_..._---_._-_.~...__.._._---_._----_._._-_._---_...
01/00/00 12:00A P.010
-----
IN WITNESS WHEREOF, the parties have caused this Lease Agreement to be executed by their
duly authorized representatives on the dates set forth below and acknowledge that this Lease
Agreement is effective as of the date first above written.
Name:
Print:
11..t(Y'-
WITNESSES:
~~af~(L
P r i n t: --:Pdt'; TI cl'L
rfi) L_/,/i I
Name: "lfaCrtt<il. ii!~
Print: ~J,aR/ rJ1a1-<7
Name:
LESSOR:
Vertex Development, LLC,
a Delawace limited liab;lity company Q _
By: ~8
Print Name:-AIQfl ~I t :Z
Title: -i{rj (\6.. j~ 'j Mo,,^-~f
Date: q - IE -c lp
(Signature)
Print Name:
Title:
Date:
LESSEE:
Royal Street Communications, LLC, a Delaware
limited liability compa~y ~ .
By: ~. d A"7 j~.A ..fI..(1..-{,
I (Sign Ire)
Print Name: L.1'()dw L!Q..! /,' j(..".
Title:1f7J1~JL ,flud~--:f l7f"~j, j
Date: 9 /~/(J0 -
Page 10 of 17
Site No.: ORD21 0
Site Address: 1500 WinIer Springs Blvd. Winter Springs, Florida 32708
EXECUTION COpy 7.10.06
~
\17
ATTACHMENT E
CITY OF WINTER SPRINGS, FLORIDA
1126 EAST STATE ROAD 434
WINTER SPRINGS, FLORIDA 32708-2799
Telephone (407) 327-1800
Ronald W. McLemore
City Manager
June 29, 2007
Alan Ruiz
Vertex Development, LLC
405 Dale Mabry Highway, Suite 244
Tampa, Florida 33609
Dear Mr. Ruiz:
This letter is to advise you that the City Commission has expressed strong concerns regarding the
negative aesthetic impacts of cell tower monopoles at the 130-150 foot height being discussed at
this time. The Commission has expressed a strong preference for a lower tower alternative that
would fit on an existing telephone pole and a new pole installation that would not extend above
the typical tree canopy line in the City.
This letter is provided for advisory purposes only and should not be construed in any way as a
regulatory decision.
If you have any questions, please contact me at your convenience.
Sincerely,
l(~.W ~Jl~~
Ronald W. McLemore
City Manager
/jp
cc: Community Development Director
ATTACHMENT F
CITY OF WINTER SPRINGS, FLORIDA
UNAPPROVED MINUTES
BOARD OF ADJUSTMENT
REGULAR MEETING
JULY 11,2007
(RESCHEDULED FROM JULY 5, 2007)
CALL TO ORDER
The Board of Adjustment Regular Meeting of Wednesday, July 11, 2007 (Rescheduled
from July 5, 2007) was called to Order at 7:01 p.m. by Chairman Thomas Waters in the
Commission Chambers of the Municipal Building (City Hall, 1126 East State Road 434,
Winter Springs, Florida 32708).
Roll Call:
Chairman Thomas Waters, present
Vice Chairman Jack Taylor, present
Board Member Howard Casman, present
Board Member Linda Collins, present
Board Member Kathryn Fairchild, absent
A moment of silence preceded the Pledge of Allegiance.
Under Agenda Changes, Mr. Randy Stevenson, ASLA, Director, Community
Development Department stated, "There was to be two (2) Agenda Items tonight '500'
and '501'. Your Agenda Item '500' the Application for Crown Castle [International] was
withdrawn from consideration this morning."
PUBLIC INPUT
Noone spoke.
INFORMATIONAL AGENDA
INFORMATIONAL
100. Not Used.
CITY OF WINTER SPRINGS, FWRIDA
UNAPPROVED MINUTES
BOARD OF ADJUSTMENT
REGULAR MEETING - JULY 11,2007
(RESCHEDULED FROM JULY 5, 2007)
PAGE 2 OF 15
CONSENT AGENDA
CONSENT
200. Office Of The City Clerk
Approval Of The January 4, 2007 Regular Meeting Minutes.
"I MAKE A MOTION WE APPROVE THE MINUTES - JANUARY 4, 2007."
MOTION BY ADVISORY BOARD MEMBER CASMAN. SECONDED BY
ADVISORY BOARD MEMBER COLLINS. DISCUSSION.
VOTE:
BOARD MEMBER CAS MAN : AYE
CHAIRMANWATERS: AYE
BOARD MEMBER COLLINS: AYE
VICE CHAIRMAN TAYLOR: AYE
MOTION CARRIED.
AWARDS AND PRESENTATIONS
AWARDS AND PRESENTATIONS
300. Not Used.
PUBLIC HEARINGS AGENDA
PUBLIC HEARINGS
500. Community Development Department
WITHDRAWN
Requests The Board Of Adjustment Hear The Request Of Crown Castle
International For A Conditional Use To Allow A Telecommunications Tower, On
An Approximately 75' X 75' Lease Site At The City's Wastewater Treatment Plant
Site In Tuscawilla, Along Winter Springs Boulevard (1560 Winter Springs
Boulevard). The Site Is Located Within The PUD (Planned Unit Development)
Zoning District (The Site Has A Public/Semi-Public Future Land Use Designation).
This Agenda Item was not discussed as it was Withdrawn.
CITY OF WINTER SPRINGS, FLORIDA
UNAPPROVED MINUTES
BOARD OF ADJUSTMENT
REGULAR MEETING - JULY 11, 2007
(RESCHEDULED FROM JULY 5, 2007)
PAGE 3 OF 15
PUBLIC HEARINGS
501. Community Development Department
Requests The Board Of Adjustment Hear The Request Of Vertex Development,
LLC For A Conditional Use To Allow A Telecommunications Tower, On A 70' X
70' Lease Site, At The Tuscawilla Country Club (1500 Winter Springs Boulevard),
In The Tuscawilla Planned Unit Development (PUD). The Site Is Located Within
The PUD (Planned Unit Development) Zoning District (The Site Has A Recreation
And Open Space FLU (Future Land Use) Designation).
Mr. Stevenson presented this Agenda Item and stated, "According to Ordinance 2006-12,
we have ninety (90) business days in which to process this. That means we need to -
acted on by the Commission by September 7th, 2007."
A Map entitled "Figure 1 to Ordinance 2006-12" dated February 12, 2007 was displayed.
An Aerial view was then shown of the proposed site and pictures of the proposed
monopole towers.
Mr. Stevenson then said, "Staff would recommend that the Board of Adjustment consider
the information presented in the Staff Report as well as the upcoming Public Hearing
Testimony and Testimony of the Applicant. And if the Board is satisfied that the request
is consistent with all the applicable data and Code provisions including whether or not the
Applicant has provided the evidence that demonstrates that Tier One or Tier Two sites
are not available or technically feasible, make the recommendation that they deem
appropriate to the City Commission based on the Criteria set forth in the applicable Code
sections that we talked about here tonight."
Discussion.
Ms. Mary D. Solik, Foley & Lardner LLP, 111 North Orange Avenue, Suite 1800,
Orlando, Florida: representing Vertex Development LLC, Ms. Solik spoke on this
Agenda Item.
Tape IISide B
Ms. Solik said, "I want to put in a full set of the Application in the Record. You all were
not given the full set in your packages and later I will outline what was in there that is not
in your packages. Just for example, we did submit a Tree Survey to the City that was in
the Application package. That was one of the Conditions of approval. That has been
done."
CITY OF WINTER SPRINGS, FLORIDA
UNAPPROVED MINUTES
BOARD OF ADJUSTMENT
REGULAR MEETING - JULY 11, 2007
(RESCHEDULED FROM JULY 5, 2007)
PAGE 4 OF 15
After numerous phone conversations with City Attorney, Anthony A. Garganese, Ms.
Solik noted, "I need to state my objection on the Record. I am of the opinion that the
modified Ordinance does not give the Board of Adjustment Aesthetic Review jurisdiction
that still remains in the City Commission. That's not generally something that this Board
deals with. Your Staff Report indicates that you have that jurisdiction and has asked you
to opine on that. My review of the Ordinance and your existing [City of] Winter Springs
Code provisions says that that's not how that is read. The City Commission still makes
that decision and that you are not Advisory on that issue. You certainly are Advisory on
the 'Conditional Use'. Again, legally, I just need to get that on the Record.
The next thing I want to do is, there was an additional Letter of Intent that we received
today from a carrier, and that was Sprint [Nextel]. That was not in your Application
package. I am going to put that in the Record."
A letter from Sprint [Nextel] dated July 11, 2007 was distributed to the Board Members.
Ms. Solik said, "I want to put into the Record the Letter from Crown Castle
[International] withdrawing their Application, since that is an Issue that has been
referenced in your Staff Report."
Mr. Alan Ruiz, Vertex Development, LLC, 405 South Dale Mabry Highway, #244,
Tampa, Florida: spoke regarding proposed cell tower location. Mr. Ruiz said, "First and
foremost is the location going to work from a radio frequency perspective for the tenants
that you are trying to put on the tower. In other words, is the location in the right place
from a technical point of view, because it can be the best location in the world from every
other point of view but if it doesn't work technically for the people who need to mount
antennas on the tower, it is a worthless location. So, the very first consideration that you
take into account is the needs of your tenants.
In this case, T-Mobile is our anchor tenant, and basically, they let us know that the most
preferred and best location not to mention the location that would work, would be on the
west side of that golf course if at all possible. So, that is how we ended up dealing with
Tuscawilla [Country Club] Golf Course and community center, and so we approached
them and started working with them about a location on their property. The second thing
that you have to consider, as much as an impact the actual tower is, the compound that
houses all the ground equipment for the tower is impacted to those immediately
surrounding the area.
So, in an ideal world you are able to put that compound in a tree stand such as the one we
are proposing today. I think we have the best case scenario in this situation as far as the
compound location goes, because we are able to put it in a tree stand that really
minimizes the visual impact and the impact overall of the actual ground mounted
equipment, the equipment that goes on the ground that supports the cell sites for each of
the tenants.
CITY OF WINTER SPRINGS, FLORIDA
UNAPPROVED MINUTES
BOARD OF ADJUSTMENT
REGULAR MEETING - JULY 11, 2007
(RESCHEDULED FROM JULY 5, 2007)
PAGE 5 OF 15
Another consideration - is the actual tower itself and how it is going to impact things.
And SO, we felt that by putting it up close next to the existing ninety foot (90') high
voltage power line easement would at least minimize the impact considering there was
already an impact there. We weren't bringing something completely new to the game,
there was already an impact being made and so we are just adding to that hopefully,
choosing the least obtrusive location as possible for the actual pole that goes up into the
air.
You have to find a landlord that is willing to lease you or sell you or allow you to put this
Application in place - and we were lucky enough to do that with the [Tuscawilla]
Country Club, but we had to consider what their operations are with the golf course."
Mr. Ruiz said, "So we had to consider where to put that tower relative to the operations
of the parent track which is the [Tuscawilla Country Club] Golf Course and how they do
their business. There are also other considerations such as bringing power to the site,
bringing tel co [telecommunications] to the site, whether or not there is adequate tree
cover. Again this goes back to trying to screen the facility as much as possible.
For example, are there wetlands, are there endangered species in the area? These are all
things that are all necessary - that need to be considered for a site. For an example, there
is a little creek that runs in the area, we made sure we were appropriately set back from
the wetlands so we were not impacting those wetlands and again - we very much so
consider the landlord's use of the property and what their needs are and so we try to
balance all these things.
The Radio Frequency Engineer's need to know, so that we can technically address the
needs of the site. We want to make sure that the compound is being screened, the tower
is being screened, that the golf course can continue its operations without us impacting
them too much and so that we are also able to bring access power and telco
[telecommunications] to the site adequately. So, these are all the things that we - when
we spoke to the [Tuscawilla] Country Club and figured where the best place would be to
put the tower."
Ms. Solik said, "The Tiered analysis, [Mr.] Art Peters (Consultant) really has already
answered the question about Tier One. He has told you, he told the City Commission in a
report that has been paid for by the City that the four (4) locations in Tier One will not
work to provide coverage to the Tuscawilla residential area. So, now we need to go
through the Tier Two analysis. And the first location in Tier Two are on properties that
are owned by the City of Winter Springs that are designated public, semi-public on the
Future Land Use Map (FLUM)."
The City of Winter Springs Future Land Use Map (FLUM) was then displayed.
CITY OF WINTER SPRINGS, FLDRIDA
UNAPPROVED MINUTES
BOARD OF ADJUSTMENT
REGULAR MEETING - JULY 11,2007
(RESCHEDULED FROM JULY 5, 2007)
PAGE 6 OF 15
Ms, Solik said, "Weare talking about - the general geographic search area is the
Tuscawilla area and I have circled the four (4) properties that are even remotely close to
this area that are deemed public, semi-public on the City's Future Land Use Map
(FLUM). The Code also requires that they be owned by the City of Winter Springs. This
is the school property that is not owned by the City. This is a church property - also not
owned by the City. This would - actually I don't know who owns this piece, but it is so
far remote; it is right up on [Florida State Road] 417. Our engineers are going to testify,
they will tell you that they have tower, cell locations on this side of [Florida State Road]
417 and this would be much, much too close to their existing cell sites over here to
provide any additional coverage.
So, the only possibility is the water reclamation facility next to Sam Smith Park and the
three (3) RF (Radio Frequency) Engineers who will testify tonight will all tell you that
that site just doesn't work for them. It is too far east. And as demonstrated in Art Peters'
Report, the cells are kind of developed in a honeycomb fashion and in order for a call to
pass from one cell to another, there has to be some overlap in coverage between the cell
sites. And if you move the site that far east, then you create a gap between the cells on
the west side and you don't get that hand off. So, the appropriate geographically location
is to the west ofthat property."
Ms. Solik read an excerpt from the Code of Ordinances.
Continuing, Ms. Solik said, "The whole goal here, the whole geographic coverage
objective is to provide coverage to a residential area, so we can't, even if there were
commercial or industrial buildings tall enough to support a ten foot (10') antenna on top
of the building in this area, which there are not. The Ordinance by its very terms would
prohibit us from locating on that property in the Tuscawilla residential area.
The third criteria is within an enclosed existing church steeple or other type of existing
structure and [Mr.] Randy Stevenson told you that that is not intended for us to build a
church steeple, that means its got to be something existing and again there are no
facilities in that residential area that have sufficient height that we could co-locate an
antenna in and add coverage. The next Tier Two location is upon existing sports lighting
structures, utility structures and water tanks provided that the structure is not located
within a single residential area.
Again that eliminates Tuscawilla because this is a single residential area. So, we can't
utilize any structures in that area. And finally, the last one is on the proposed Fire Station
number three (3) which is to be located on the south side of State Road 434. I have
circled it up there. That's this little site up here. This is outside ofthe geographic search
area as well which is much more down in this area, as shown on the Art Peters' map and
as the RF (Radio Frequency) Engineers will testify to. So, those are the Tier Two
locations. They just don't work. They just don't allow us to get in there and provide the
coverage in this residential area."
CITY OF WINTER SPRINGS, FLORIDA
UNAPPROVED MINUTES
BOARD OF ADJUSTMENT
REGULAR MEETING - JULY 11,2007
(RESCHEDULED FROM JULY 5, 2007)
PAGE 7 OF 15
Next, Ms. Solik said, "This is also another copy of the City's Future Land Use Map
(FLUM). I am now moving to the Tier Three location. And the first Tier Three location
and Randy [Stevenson] is correct, these are listed in order of preference. You - can't use
[Tier] One before you can use [Tier] Three, which is the site that we have chosen.
And the first - property which has a Future Land Use (FLU) Designation of 'Industrial'.
The only properties in the City of Winter Springs with 'Industrial' Future Land Use
(FLU) are up in the very northwest tip of the City." Ms. Solik said, "So, that is not an
option. "
Continuing, Ms. Solik said, "And the next category of Uses is property which has a
Future Land Use (FLU) Designation of 'Mixed Use' and is part of a Department of
Regional Impact (DRI). I only found two (2) properties on your Future Land Use Map
(FLUM) which are designated 'Mixed Use', this one right there and the one down here
on the bottom, and neither one of those is a DRI (Department of Regional Impact). I
checked with the Department of Community Affairs (DCA) and they told me that only
Oviedo Marketplace is a DRI (Department of Regional Impact)."
Ms. Solik said, "Again, it is outside the geographic search area even if it is a DRI
(Department of Regional Impact) property. It's much too far south and it is going to be
too close to locations that carriers have on the east side of [Florida State Road] 417. So,
not a whole lot of RF (Radio Frequency) support needed to tell you that we just can't -
find a location in Tier Two, we have to drop down to Tier Three.
Ms. Solik introduced the RF (Radio Frequency) Engineers from T -Mobile, metroPCS
[Inc.] and Clearwire [US LLC]. All three (3) of these entities have submitted leases,
they have signed leases to co-locate on this tower and those leases have been submitted
as part of your package - Alan [Ruiz] - tell these folks who all have expressed interest,
what the level of commitment is and how this tower is loaded up."
Mr. Ruiz said, "This tower is loaded for seven (7) levels ofloading. On the first level, we
have a lease signed with T -Mobile. On the second level, we have a Letter of Intent and a
Tenant Application submitted by Verizon Wireless. Sprint Nextel has submitted a Letter
of Intent and an Application committing themselves to the third and fourth levels.
metroPCS [Inc.] has a signed lease in place for the fifth level. Cingular Wireless has
submitted an Application for the sixth level and we have a signed lease on the seventh
level with Clearwire [US LLC]. Now the reason we don't have signed leases on every
single unit is because some of the corporate policies that some of these companies have
are that they don't sign leases until the tower is in the air. And others don't have that
same policy, therefore, they are able to submit Applications and Letters of Intent, but not
signed leases yet, others are able to sign leases. The bottom line is that every single cell
phone company that operates in this community and this County has submitted either an
Application, Letter of Intent, or a signed lease to co-locate on this tower. In other words,
every one needs it."
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The Site Plan was displayed to show the elevation drawings of the tower.
Continuing, Ms. Solik said, "Each one of these little squares are levels on this tower is a
Tier for a wireless carrier and T -Mobile will be at the top, Clearwire [US LLC] is at the
bottom, Verizon [Wireless] is down here and Sprint [Nextel], three (3) and four (4),
Cingular [Wireless], metroPCS [Inc.]." Board Member Casman asked, "The higher up
you are the better the coverage?" Ms. Solik said, "Absolutely."
Chairman Waters asked, "What are those increments between antennas?" Mr. Johnson
said, "Each one ofthose pods is ten feet (10') so what you are looking at is one hundred
and fifty foot (150') tower with the top seventy feet (70') of that tower having antennas.
So, what you really need to consider is we need to provide the ability for all licensed
carriers to provide coverage in the area. The lowest carrier, which is Clearwire [US
LLC] is looking at the bottom spot ranging between eighty one (81 ') and ninety feet
(90')."
Mr. Dan Babilla, Senior RF Engineer, T-Mobile, 200 Telcom Drive, Orlando, Florida: as
a resident of Winter Springs, Mr. Babilla spoke of cell phone coverage in the Tuscawilla
area. Referring to a T-Mobile cell phone coverage map of Tuscawilla, Mr. Babilla said,
"The 'red' areas show a very strong level of cell phone coverage that would work for the
most part, most - residential indoors. That would be in the 'red'. The 'yellow' shows an
in-vehicle - coverage acceptable reliable coverage in your car. The 'green' level in the
middle - a lot of pixels on this computer model coverage chart shows that there is a
deficiency where it only works outdoors."
Mr. Babilla said, "Radio frequency is a line of site technology and it's been that way for
however long it has been discovered and a form of communications for us. There is one
(1) white pixel and that is right where Howell Creek comes through on Northern Way
and it is a low spot. So, it kind of demonstrates that line of - radio frequency line of site
is determined and other variables also go into that. Tree cover absorbs and scatters the
signal so, trees can block the signal. Construction of our homes - concrete, obviously
steel and on the other end, windows can let the radio signal in somewhat. So, basically
what we are looking at is our current coverage and if we put this proposed site at a
hundred and fifty foot (150') right at the proposed location, we see how it is almost like a
piece ofthe puzzle."
Mr. Babilla then said, "With very little gaps between the sites, as far as a good rock solid
residential level of coverage. I wanted to demonstrate the site locations we currently
have now in and around Winter Springs - and we kind of centered this around
Tuscawilla. "
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Mr. Babilla explained, "This location is obviously east of [Florida State Road] 417 - just
north of [State Road] 434, it's back in the woods a little bit right there and that site - just
gets - just barely south of [State Road] 434 and a little bit into the Tuscawilla area but
obviously it doesn't get toward the center. And the same with the tower - Oviedo
Marketplace you notice a tower right behind it right off of [Florida State Road] 417, that
would be that site location right here. This wireless communication tower - on
Tuskawilla Road just south of Red Bug Lake Road and that obviously is too far south to
get into the Tuscawilla community.
We also have this site, and this site Mary (Solik) either on City property or on an
easement, right-of-way, anyway it is by some power lines - that is here and then right
across the street or right next door actually is a monopole - that actually T -Mobile
originally developed and worked and partnered with the City before for providing
coverage at this location. So, the question I heard was, 'Why do we need the site in this
location'? The network has matured around and dictated, we have to put it in a location
in the middle of the hole as opposed to having multiple sites. If we have to move this
outside of our search area ring, either this way or that way, that is going to - open up a
coverage hole to the other site. It is basically a location balance." Mr. Babilla said, "We
found this to be a very feasible and plausible location that I think is probably the best we
have come up with."
Ms. Solik asked, "Mr. Babilla is this one [hundred] fifty [feet] (150') height perfect
coverage for you?" Mr. Babilla said, "You can see there are a few gaps, but it is very
feasible and it will work." Ms. Solik then asked, "Are you utilizing the lowest height
technology at this site?" Mr. Babilla said, "Yes. This is our minimum design height."
Ms. Solik asked, "Is the technology that you use dictated by the height of the proposed
application?" Mr. Babilla said, "Yes." Ms. Solik then said, "Do you have a different
technology at a hundred feet (100') than you use at a hundred and fifty feet (150')?" Mr.
Babilla said, "We use the same equipment, the same technology throughout our network
is consistent."
Ms. Solik asked, "Do you ever go in and seek approvals for a height higher than you
really need?" Mr. Babilla said, "No. We don't believe in doing that because basically-
a number of reasons. Building it higher than we need causes interference to other places
in town, because we have to reuse the limited spectrum of frequency that the FCC
(Federal Communications Commission) gives us. Also, it gives us additional loss in
equipment, like coaxial going up the tower, it has to be fed with coax cable which is
usually made of copper or copper clad materials, it's expensive. It is not feasible to do
that. "
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Ms. Solik asked, "Do you take aesthetic considerations into account when you are
designing your network location?" Mr. Babilla said, "Yes. It is T-Mobile's practice and
it is a corporate mandate actually that we do the best we can as far as site wireless
communications facilities and be a good neighbor in the community and work with the
jurisdictions and partner with them any chance we can get."
Ms. Solik then asked, "If you could have more height out there, would you take it?" Mr.
Babilla said, "Yes. But I would want to jump at the opportunity, but at the same time, I
don't think that would be the right thing to do because this is our minimum height but at
the same time we want to partner with the community so, we are looking for a good
medium."
Discussion.
Mr. Craig 0 'Neill, RF Engineer, metroPCS Inc., 8256 Exchange Drive, Suite 230,
Orlando, Florida: spoke about a need for additional coverage and displayed a map of the
coverage area. Mr. O'Neill said, "If you just take a look at these two (2) plots I have, it is
very similar to what Dan [Babilla] did. This is at our spot - I believe it is spot five (5)
which is a hundred and five feet (105'). This is showing our existing coverage and our
existing towers in the area and the obvious hole in Tuscawilla. The plot above there will
show the improved - currently we have sites that our 'yellow' here these four (4) in the
circle here and it creates the hole right in this area. This is the proposed Vertex
[Development, LLC] tower here and this is the area of improvement that we would get
here at a hundred and five feet (105').
Just a little bit of area down here that is not going to get filled in quite as we would like,
the 'green' shading here basically depicts good in car coverage and fair in building
coverage and the 'white' would. depict poor coverage areas that we would like to
concentrate on improving. So, basically this site does fill in a large portion of the area
that we are looking to fill in - eighty percent (80%) criteria that Dan [Babilla] was talking
about, we do something similar. This single site would definitely service a large
improvement in our current coverage and actually we have been waiting on this site since
before we launched. It was supposed to be part of our initial launch plan to provide
coverage to this area, so this is a much needed site for us."
Ms. Solik asked, "Are you using the lowest height technology?" Mr. O'Neill said, "Yes.
At the hundred and five feet (105') level that we are going at, that is probably the lowest
height that we would want to use in a topography such as this with a lot of tree lines and
residential homes in the area, that tends to block the signal going out maybe - as close as
a mile and a half or so, it starts to degrade at that point rather quickly.
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And if you get too much into the trees or below the trees that affects and magnifies even
more. Probably the absolute lowest height we would want of a site like this would be
about ninety feet (90'), so a hundred feet (100') is probably just about as low as we would
want to go and still get adequate coverage off of this site. Now, the hundred and fifty
foot (150') that T-Mobile is getting would be nice but everybody can't have that
unfortunately."
Mr. Calvin Johnson, RF Engineer, Clearwire US LLC 414 Pursley Drive. Deland.
Florida: spoke about the cell tower location. Mr. Johnson said, "Clearwire [US LLC] is a
little bit different from the cellular and PCS [Personal Communication Service] carriers.
We are a - high speed broadband internet provider for home use. We are currently
stationery in your house - modem, high speed broadband access. There are a couple of
differences that I would like to mention. The band we use has much higher frequency
than the cellular and PCS [Personal Communication Service] carriers and cellular
carriers. The frequency they use goes through trees a little bit better than we do; PCS
[Personal Communication Service] not quite as good and then there is us. So, our target
coverage is usually a mile to a mile and a half radius what we can get out of a site.
These are the sites we have surrounding right here now - this is a site in question. With
this site turned off, this is the hole that we have, so the 'white' would be no service. So,
we wouldn't try to sell to these households. There would just be no service. With this
site, you will notice it is really a poor service area. Actually, I would prefer a hundred
and eighty feet (180')." Mr. Johnson said, "We are taking the ninety feet (90') here the
lowest spot." Ms. Solik asked, "Mr. Johnson, if you had to go below ninety feet (90'),
would you take this site?" Mr. Johnson said, "I barely took the site as it is. In fact, I
recommended that it be killed." Mr. Johnson then said, "A hundred and eighty feet (180')
really would probably be what I need to get my engineering targets."
Ms. Solik said, "The Cingular [Wireless], Sprint [Nextel] and Verizon [Wireless] have
corporate policies that they don't send RF (Radio Frequency) Engineers to sites and they
don't make formal commitments until the sites are approved. And let me remind you
again, in our application package, you have the leases from T-Mobile, Clearwire [US
LLC] and metroPCS [Inc.], you have the Letter of Intent from Sprint [Nextel] and from
Verizon [Wireless] and an Application from Cingular [Wireless] requesting a particular
height on the tower." Ms. Solik then said, "I think that ifthis site is approved the carriers
that have not signed lease agreements will be burning up the phone lines and beating a
path to the Building Department to get this thing on the air."
Chairman Waters recessed the Meeting at 8:32 p.m.
Chairman Waters reconvened the Meeting at 8:40 p.m.
Tape 2/Side A
Various pictures were displayed of Monopole towers.
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Discussion.
Ms. Solik read a letter received from Mr. Peters dated April 17, 2007.
Referencing the Settlement Agreement, Ms. Kate Latorre, Attorney, Brown, Garganese,
Weiss, & D' Agresta, P.A., said, "The Staff wanted you to know the Settlement
Agreement was out there and that it affects the [Tuscawilla Country Club] Golf Club
property, however, if you were to recommend approval and the City Commission were to
eventually approve this Application, the Settlement Agreement - the City Commission
would have to work out at that time."
Chairman Waters said, "It has nothing to do with our decision tonight?" Ms. Latorre
said, "We just wanted to let you know it was out there. It should not be a factor in your
consideration."
Then, Chairman Waters asked, "Is the site plot going to be seventy by seventy [feet] (70'
x 70') or fifty by fifty [feet] (50' x 50')?" Ms. Solik said, "Fifty by fifty [feet] (50' x 50')."
Mr. Ruiz said, "The actual compound itself that is fenced in will be fifty by fifty [feet]
(50' x 50'). But, we have allowed for a ten foot (10') landscaping buffer around it."
Chairman Waters asked, "You are not going to store any hazardous materials there that
violate any regulations. Is that correct?" Ms. Solik said, "There is nothing hazardous out
there. "
Chairman Waters asked, "Is there going to be a generator there?" Mr. Ruiz stated,
"Vertex Development [LLC] does provide generator power for the tenants. The tenants
will choose whether or not to install equipment that has a built in generator. So, it is
really up to each individual tenant."
Regarding wildlife assessment, Chairman Waters asked, "What are you going to do with
the gopher tortoises?" Mr. Ruiz said, "If there are any, we will properly re-Iocate them
which we have at many other sites in the past." Chairma..'l \Vaters said, "You are not
going to bury them?" Mr. Ruiz said, "No Sir. We use licensed gopher tortoise re-
locators."
Discussion.
As to coverage in the Oak Forest area, Mr. Babilla said, "We would see coverage
enhancement in some areas."
Referencing the installation, Mr. Ruiz said, "It has a case on tight foundation, which is
basically a cylinder of concrete that goes down into the ground and it is anchored, bolted
to that and there are absolutely no guide wires whatsoever."
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Chairman Waters opened the "Public Input" portion of the Agenda Item.
Ms. Diana Yarusinski, 1166 Winged Foot Circle East, Winter Springs, Florida: lives
within one hundred feet (100') of the proposed tower and is concerned about the home
values, generator noise, and wildlife. Ms. Yarusinski was not in favor of this Agenda
Item.
Mr. Charles Lacey, 733 Bear Creek Circle, Winter Springs, Florida: spoke in favor of
this Agenda Item.
Chairman Waters closed the "Public Input" portion of the Agenda Item.
Mr. Ruiz said, "The access will be developed to Staffs requirements in terms of building
a road, not building a road, graveling it, not graveling it. We will follow what your
building Code requires. As far as trips to the site, once the site has been built, there is
approximately one (1) trip per tenant a month in terms of checking up on the site and
making sure everything is good. Once a month, Vertex [Development, LLC] sends out
somebody to make sure that the locks and the fencing and the landscaping and everything
is up to par and that the paint is not chipping - those are our maintenance efforts to make
sure we keep the site up to par. As far as construction goes, it is about a sixty (60) day
process and we will have all the tenants that are co-locating on the tower have their co-
location occur during the construction of the tower verses having them build us a tower
and then having each one of them come individually afterwards to co-locate on the
tower." Continuing, Mr. Ruiz added, "The use of the generator's is very infrequent."
Mr. Stevenson displayed an aerial map of the proposed site and stated "One other
question - has to do with the Tier Two site. As I said earlier in the presentation, the City
has voted to allow an Application to move forward for a tower on the wastewater
treatment plant. That is approximately 3,500 feet to the east of this particular site. It
represents an area that is at the closest point 430 feet away from existing houses that
would be on Ironwood Couri. Probably over twice the distance of this proposed facility
is. I guess if I might, I would like to ask the Applicant or the RF (Radio Frequency)
Engineers - how detrimental is a relocation of this particular site to Tier Two site 3,500
feet east on the wastewater treatment plant in terms of coverage. I looked at the pixilated
coverage maps and it appeared that they indicated areas of white and inadequate coverage
and basically for Staffs edification and possibly those in the audience, I would like to
know if that really effects the ability of the carriers to provide service to the Tuscawilla
area. "
Referring to the "Coverage Maps", Mr. Babilla said, "Our proposed site - in this area is
the water treatment plant just - a little bit east of Greenbriar [Lane] - I think that is just
past Glen Eagle right where the Sam Smith Park entrance is."
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Mr. Babilla said, "If we moved it that far the center of this - ring, that would shift - as
you can see the shape of the site - that would shift that too far to the east and would open
up most of this area between - west of Tuscawilla - to close to Northern Way." Ms.
Solik asked, "Would you reject that site?" Mr. Babilla said, "I would not accept that site
as a viable candidate, just because the location pushes it over and it is pretty close to the
other sites, but the main concern would be - traveling through here, we would lose the
residential indoor coverage but even in your car, you are opening up to the similar
situation we have right now handing off to the other sites, and you could drop a call."
Mr. Stevenson said, "Again, my intent is as part of meeting the requirements of this Code
to assist the Board of Adjustment, we have to have definitive proof that the Tier Two site
is not available or not viable. Tier Two site is available, now we have to address the
question of whether or not it is a viable site."
Mr. O'Neill said, "Basically, I would have to concur with Dan [Babilla]. We have less
margin for error being at a lower site that he does. The nice thing about this particular
location, even though we have a little bit of wiggle room - it is pretty much equal
distance with the existing tower ring in the area - and it is right in the middle of where
our coverage is the worst. Referring to the multi colored map, Mr. O'Neill said,
"Basically those two (2) red spots just to the south of the proposed site is definitely the
two (2) areas that we want to most make sure that we hit and that location is ideal for
doing that. Ifwe move 3,000 feet to the east, we won't be able to do that. If you look at
our existing coverage currently, if we move that far over, we will be getting into an area
where we have a little bit better signal already, we won't be adequately covering the
center of our worst area and it will make a potential for hand offs to fail."
Next, Mr. Johnson said, "By moving further over, it is even worse."
Furthermore, Mr. Stevenson spoke of a Letter of Intent for the Record.
Tape 2/Side B
"I WOULD LIKE TO MAKE A MOTION THAT WE APPROVE THE
APPLICANT'S REQUEST FOR THE CELL TOWER." ADVISORY BOARD
MEMBER CASMAN ADDED, "RECOMMEND TO THE CITY COMMISSION
THAT WE APPROVE IT." MOTION BY ADVISORY BOARD MEMBER
CAS MAN. SECONDED BY VICE CHAIRMAN TAYLOR. DISCUSSION.
VOTE:
BOARD MEMBER COLLINS: NAY
VICE CHAIRMAN TAYLOR: AYE
CHAIRMANWATERS: NAY
BOARD MEMBER CASMAN : AYE
MOTION DID NOT CARRY.
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For the Record, Board Member Casman said, "It appears to me that the Applicant has
demonstrated Compliance with all the Codes and Ordinances and they do meet the third
Tier requirement." Vice Chairman Taylor said, "I agree exactly with what you just said."
Vice Chairman Taylor said, "Then maybe we should ask the Applicant if they would like
to take a look at this and come back to us with some alternative plans?" Mr. Stevenson
said, "The calendar that we are working on, we have an obligation pursuant to the
Ordinance to get this before the City Commission for a Vote one way or another prior to
September 7ili [2007]."
Discussion.
Regarding sending the Agenda Packets electronically to the Board Members, Board
Member Casman said, "Personally, I think we ought to stick with killing trees." Board
Member Collins said, "I would be afraid that I would forget to check my email."
Chairman Waters said, "If we were to do it electronically, we would probably want the
City [of Winter Springs] to deliver the - already printed." Vice Chairman Taylor said, "I
vote to stick with the paper."
REGULAR AGENDA
REGULAR
600. Not Used.
ADJOURNMENT
Chairman Waters adjourned the Regular Meeting at 9:46 p.m.
RESPECTFULLY SUBMITTED:
JOAN L. BROWN
DEPUTY CITY CLERK
APPROVED:
THOMAS WATERS
CHAIRMAN, BOARD OF ADJUSTMENT
NOTE: These Minutes were approved at ilie
, 2007 Regular Board of Adjustment Meeting.
Date: August 27, 2007
The attached was provided by City Manager
Ronald W. McLemore during the August 27,
2007 City Commission Regular Meeting.
CITY OF WINTER SPRINGS, FLORIDA
1126 EAST STATE ROAD 434
WINTER SPRINGS, FLORIDA 32708-2799
Telephone (407) 327-1800
Ronald W. McLemore
City Manager
MEMORANDUM
TO:
Mayor and Commission
FROM:
/1 tJ if']
Ronald W. McLemore, City Manager f I I
DATE:
August 27, 2007
REF:
Vertex Cell Tower Site Application
Pursuant to applicable law, Vertex's application for construction of a communications tower in
Winter Springs has been reviewed by all appropriate staff and boards of the City of Winter
Springs; the findings and recommendations of which have been forwarded to the Winter Springs
City Commission for final disposition. To date, the Commission has held hearings on the
application on August 13, and August 20,2007.
It is readily apparent from the hearings and public correspondence received by the City that
property owners in the affected area of Tuscawilla are divided over the issue. Understandably,
the applicant is vigorously pursuing its rights under the law. In response, the City Commission
has been diligent in gathering data and answers to relevant questions raised by all parties of
interest in order to ensure, to the maximum extent possible, that the rights and concerns of the
parties are best served in pursuit of the best interest of the public,
After receiving evidence and testimony from all parties of interest who petitioned to be heard, the
Commission decided that it had exhausted discovery on all issues but one; the extent to which
existing Florida Power and Light power poles located in the immediate vicinity of the proposed
cell tower site could be utilized as a Tier 2 alternative to the tower proposed by Vertex at a Tier 3
site. Relatedly, at the last Commission meeting, the City Commission accepted staff s
recommendations for additional time to (1) discover any additional information that may be
forthcoming from Florida Power and Light regarding the installation of small towers on top of the
Florida Power & Light power poles, (2) provide the Commission with a written summary of
information presented to date; and (3) provide the Commission with decision alternatives based
on the information presented to date.
Summary of Information to Date
Below is a summary of some of the more relevant information presented to date:
Anthony's Revised Vertex Site Application Memorandum
Page] of5
Florida Power and Light Alternative Site
Florida Power and Light Company has confirmed information regarding their limitation of not
more than one 10 foot high cell canister containing one carrier per pole. Based upon the
testimony of expert witnesses, and the information provided to date by Florida Power and Light,
it appears that the single 10-foot canister per pole concept offered by Florida Power and Light
would make the use of the poles unfeasible. The unfeasible nature of this alternative is due to the
loss of coverage resulting from the distance of some required poles from the Vertex site, the site
offering the best overall coverage based upon competent evidence.
Land Use Settlement Agreement
The City Attorney has vigorously defended his opinion providing that the Settlement Agreement
between the City and the owner of Tuscawilla Country Club. The Settlement Agreement does not
permit communication towers, and the Settlement Agreement is binding upon the property that
Vertex and the Tuscawilla Country Club have chosen to locate a tower. The Settlement
Agreement was entered as a final order by the Circuit Court. Based upon the City Attorney's
opinion, it appears that an amendment to the Settlement Agreement will be necessary in order to
allow the installation of a communications tower at the location selected by the Tuscawilla
Country Club and Vertex.
Service Deficiency
Based upon the testimony of experts, there is obviously cell phone service currently in the
Tuscawilla area. However, it appears from the record presented so far that there are deficiencies
in cell service (especially within enclosed residences) within that area. In one respect, the
Tuscawilla Community will likely benefit from the installation of the tower through enhanced
cell phone service.
Proposed Coverage Capacity
Evidence and testimony of experts indicates that the tower site proposed by Vertex could be 80 to
90% eflective in enhancing cell phone coverage in parts of Tuscawilla, as well as reducing poor
coverage gaps.
Low Tower Technologv Alternative
The evidence and testimony of experts indicates that the utilization of low tower mesh or network
systems is technically feasible, but economically and logistically unfeasible due to the large
number of pole sites that would be required, geographic conditions, and access issues.
Tier One and Tier Two Site Alternative
The evidence and testimony of experts at the hearings indicates that there are no alternative Tier
One or Tier Two sites that offer the same or greater degree of coverage as that offered by the
proposed Vertex site. Vertex also presented some testimony that there are no Tier I or Tier 2
sites outside the Tuscawilla area that could provide coverage that is acceptable to Vertex.
Visual Aesthetics
The extreme importance of visual aesthetics to property owners of Tuscawilla is clearly
evidenced by the approval of the TLBD and the millions of dollars the property owners have
Anthony's Revised Vertex Site Application Memorandum
Page 2 of 5
voluntarily assessed themselves to pay for visual aesthetic improvements in the form of
decorative lighting, decorative signage, fountains, and other costly landscape improvements.
Although no competent expert evidence has been presented to the contrary, testimony and mail
provided by a significant number of property owners in Tuscawilla indicates that a significant
number of Tuscawilla residents believe that the installation of a 150 foot monopole with
concealed interior mounted antennas and buffered ground equipment will degrade the visual
beauty and aesthetics of Tuscawilla and diminish the significant improvements which they have
achieved through their large investment in visual aesthetics on roads, rights of ways, and common
areas, as well as the design quality of their homes. They also provided lay testimony that the
visual degradation caused by the tower will reduce their property values.
Tower company officials have indicated, through testimony and pictures of vertical balloon tests
and digitally imposed pole images on pictures of Tuscawilla, that the effects of the proposed 150
foot monopole with concealed interior mounted antennas, and heavily landscaped ground
installation, will have little significant impacts on the quality of visual aesthetics in Tuscawilla.
They also provided testimony stating that the proposed monopole is the least visually intrusive
and economically feasible alternative solution available to cure deficient cell service in
Tuscawilla. However, the fact remains that the proposed tower at the proposed location would be
visual throughout a significant part of Tuscawilla and on the Golf course and club property. The
tower will undeniably change the Tuscawilla landscape for years to come, and that the tower will
be viewed by some residents as offensive and degrading to the visual aesthetics of Tuscawilla in
which they have heavily invested on their own accord and through the TLBD.
Property Values
No competent testimony specific to this site has been entered to the record demonstrating the
effect of Vertex's proposed tower installation on property values in Tuscawilla.
Vertex entered competent testimony into the record related to other sites in Florida demonstrating
that cell towers did not diminish property values. Property owners in Tuscawilla have provided
court opinions in another state which upheld competent testimony providing that property values
were diminished by cell towers.
Stealth Design Alternative
Evidence of a number of different alternative tower stealth designs were provided by city staff.
In addition, other available tower concealment products were brought to the Commission's
attention including camouflaged tower wraps.
Vertex representatives provided testimony indicting that the monopole with concealed interior
mounted antennas was in fact the least intrusive, economically feasible, stealth strategy available.
Noise
Testimony was presented concerning noise levels of power generators that could cause a noise
nuisance to homeowners located near the tower site.
Vertex represented their willingness to install sound attenuation equipment necessary to prevent
nOIse nUIsances.
Anthony's Revised Vertex Site Application Memorandum
Page 3 of 5
Transfer of Development Entitlement
Owners of the country club entered into the record a prepared statement indicating their
willingness to explore transfers of certain development entitlements on the club property and
deed restrict the Golf Course property to its present use. We understand that present use to be
open space conservation. This could result in increased conservation acreage on country club
property in consideration for approval of the Vertex proposal and other unspecified development
entitlements.
Conclusions
Approval of Vertex's application to install a communication tower in Tuscawilla will require an
amendment to the Settlement Agreement entered into by the City and the Owner of Tuscawilla
Country Club, and compliance with all other applicable laws and regulations.
The proposed tower installation offers an economically feasible solution for enhancing the cell
service in Tuscawilla and curing some of the current cell phone service deficiencies in
Tuscawilla.
From the record, there does not appear to be a better alternative which is both economically and
technologically feasible.
The 150 foot monopole with concealed interior mounted antennas will change the visual
landscape of Tuscawilla which will be perceived by some property owners as offensive and a
degradation of the visual beauty and aesthetics in which they have heavily invested.
Concern regarding the visual aesthetics and potential noise nuisances associated with ground
level equipment and facilities can be successfully attenuated by landscape features, sound
attenuation equipment, and other camouflaged techniques.
There has been no expert testimony entered into the record to suggest that installation of the
proposed 150 foot monopole with invisible interior mounted antenna will degrade property
values.
In conclusion, it appears that the City Commission will have to carefully weigh whether enhanced
cell service in Tuscawilla outweighs the negative visual aesthetics the tower may create in
Tuscawilla. Further, the Commission must determine whether this proposal justifies amending
the Settlement Agreement that has protected the Tuscawilla country club community for over 13
years.
Recommended Alternative
Based upon the record of this matter it appears that the Commission has the following
alternatives.
1. Deny Vertex's proposal based upon the following:
a. The proposed tower at the proposed location is not aesthetically compatible with
the Tuscawilla area and will have a negative aesthetic impact on the community,
especially in light of community's substantial commitment to beautify and
preserve the area through the TLBD.
Anthony's Revised Vertex Site Application Memorandum
Page 4 of 5
b. The Commission's unwillingness to amend the existing land uses provided in the
Settlement Agreement between the City and the owner of the Tuscawilla Country
Club, a compromise involving a hard fought and contentious battle over land use
issues between the City and the previous owners of the Tuscawilla Country Club,
and substantial community interest.
2. Approve Vertex's proposal at a height of 150 feet subject to successful negotiations of an
amendment to the above referenced Settlement Agreement that would include the
following:
a. Adding the proposed tower as a permitted use at the proposed location based
upon the following conditions:
1. Landscape treatment around tower and ground facilities in order to
minimize the visual impact on the community to the greatest extent
practicable.
11. Sound attenuation of ground equipment to the satisfaction of the City.
111. Aesthetic enhancements to, or disguise of, the tower and ground facilities
to the extent greatest extent practicable to minimize the visual impact on
the community.
b. Amending the Country Club's current development entitlements by transferring
development entitlements and preserving open space on the Club property.
3. Approve Vertex's proposal at a height less than 150 feet subj ect to successful
negotiations of an amendment to the above referenced Settlement Agreement that would
include the following:
a. Adding the proposed tower as a permitted use at the proposed location based
upon the following conditions:
1. Landscape treatment around tower and ground facilities in order to
minimize the visual impact on the community to the greatest extent
practicable.
11. Sound attenuation of ground equipment to the satisfaction of the City.
111. Aesthetic enhancements to, or disguise of, the tower and ground facilities
to the extent greatest extent practicable to minimize the visual impact on
the community.
b. Amending the Country Club's current development entitlements by transferring
development entitlements and preserving open space on the Club property.
/jp
cc: Anthony Garganese, City Attorney
Mary Solik, Attorney
Anthony's Revised Vertex Site Application Memorandum
Page 5 of5