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HomeMy WebLinkAbout1996 09 09 Regular Item L COMMISSION AGENDA " ITEM L REGULAR X CONSENT INFORMATIONAL September 9. 1996 Meeting MGRJ( ~fJ1 /DEPT. Authorization REQUEST: City Manager requesting Commission consideration of approval of the second reading of Ordinance No. 623 providing for a lease of City property located at the sewer plant site on State Road 434 adjacent to the Winter Springs Golf Course to PrimeCo Personal Communications of Tampa, Florida for the purpose of erecting a tele-communications tower. PURPOSE: The purpose of this Agenda item is for the Commission to decide ifit desires to lease property located at the City Sewer Plant on State Road 434 adjacent to the Winter Springs Golf Course to erect a 120 foot monopole tele-communications tower for $1,000 a month and space on the tower for possible City communications uses. CONSIDERATIONS: On August 26, 1996, the Commission approved the first reading of the subject ordinance. FUNDING: No funding is required from the City for this item. RECOMMENDA TIONS: Staff recommends the Commission consider approval of the second reading of the proposed ordinance. ATTACHMENTS: 1. Prior Board Item D of August 26, 1996 2. Proposed Ordinance No. 623 (~ COMMISSION ACTION: '. .. , " ORDINAt'fCE NO, ~~ 3 At'\f ORDrNANCE OF THE CITY OF WINTER SPRINGS, FLORIDA, APPROVING A GROUND LEASE AGREEMENT BY At'\ffi BEnvEEN THE CITY OF WINTER SPRINGS, FLORIDA At~TI pes PRTh1ECO, L.P., A COPY OF WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN; PRO\fIDING FOR CONFLICTS; SEVERABILITY At"ID AL'\f EFFECTIVE DATE, WHEREAS, the City Commission of the City of Winter Springs, Florida, has determined it to be in the best interest of the public to facilitate the expansion and availability of communications systems to the public, and NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF W1NTER SPRINGS, FLORIDA, AS FOLLOWS: Section I: That the attached Ground Lease Agreement be approved by and between the City of Winter Springs, Florida and PCS Primeco, L.P., subject to the following: (a) A lease payment from PCS Primeco, L.P" of $1,000,00 per month subject to an annual cost of living increase, (b) Revision of paragraph 3 (B) to provide exercise of the option only upon the prior approval of the City Commission of the City of Winter Springs, Florida. (c) Limitation of the use of the property to a location to be approved by the City and only one antenna to be approved by the City. (d) A revision to paragraph 6 subjedlng all sale, assignments' and subletting to the prior approval of the City Commission of the City of Winter Springs, Florida. ' ( e) The addition of a provision providing for the right of the City of Winter Springs, Florida, to place communications equipment on the tower, without compensation to PCS Primeco, L.P. Section II: That if any section or portion of a section or subsection of this Ordinance proves to be invalid, unlawful, or unconstitutional it shall not be held to invalidate or impair the 1 validity, force or effect of any other section or portion of a section or subsection or part of this Ordinance, Section III: That all ordinances or parts of ordinances in conflict herewith are hereby repealed. Section IV: This Ordinance shall take effect immediately upon its final passage and adoption, READFIRSTTTIvfE August 26, 1996 READ SECOND TINfE AND ADOPTED MA.YOR ATTEST: CITY CLERK DULY AD\fERTISED FOR PlTBLIC HEARlNG: September 9, 1996 AND SECOND READING 2 .. GROUND LEASE AGREEMENT SITE 10: THIS GROUND LEASE: AGREEMENT ("Leasal, is entered into as at thIS day 01 .19_, by and :oerNeen (-OWNER), and PCS PRIMECO. L.P.. a Delaware limite<1 partnership ("PCSl, In consideration of the premises and of the mutual obligations and agreements in this Lease. the parties agree as follows: 1. THE PROPERTY A. OWNER is the titleholder of that certain real property commonly known as City of , County of State ot ("OWNER's Property") which is describe<1 on the attached Exhibit .A 1". The parties agree that the legal description ot Owner's Property may be attached as Exhibit "A 1" atter execution at this Lease. 8.' , PCS hereby desires to lease a portion ot OWNER's Property, together with obtaining a right ot access and a right to install utilities (the "Property"). The Property which is the subject at this lease is located within OWNEi'1's Property. is approximately (_) square feet. is more specificaJly described as a ( _ ) foot by ( _) foot parcel of land. and is situated substantially as shown on the attached Exhibit "A? PCS may pari< rts vehicles on OWNER's Property when PCS is constructing, removing, replacing. andl or ser/icing its communications facility. C. OWNEi'1 and PCS hereby agree that the Property (including an access right-of-way thereto) may be surveyed by a licensed surveyor at the sole cost ot PCS. and such survey shall then replace Exhibit "A2" and become a part hereof and shall control to describe the Property in the event of any discrepancy between such survey and the description containe<1 in Paragraph 1,8 above. 2. LEASE AND EASEMENT OWNER leases the Property to PCS and grants to PCS a non-exclusive easement (during the term at this lease) to access the Property (seven (7] days a week. twenty-four (24j hours a day) and to install. remove, replace. and maintain utility cables, conduits and pipes from the Property to the appropriate, in the discretion at pes, source ot electric and telephone facilities, 3, TERM AND RENT A. This lease shall be for an initial term 01 five (5) years beginning on (.Commencement Date') at an Annual Rent of Dollars (S ). which rent shall be paid annually. in advance. beginning on the Commencement Date and on eac!, anniversary thereat (partial years prorated) to OWNER or as OWNEi'1 may otherv.-ise direct from time to time in writing at least thirty (30) days betore any rent payment date. Notwithstanding the preceding. the parties agree that. prior to and until the lirst day of the montn following commencement of installation ot the PCS equipment on ene Property. the Annual Rent snail only be Dollars (S ). which rent shall be paid in the manner described above, 8, PCS is granted options to extend this Lease on the same terms and conditions for tour (4) additional five (5) year extension period(s) atter the original term expires. This Lease shall automatically be extended tor the next extension period at the end ot the then-current term unless PCS gives OWNER written notice ot its desire to terminate this Lease before the end ot the then,current term. C. The Annual Rent for each extension period shall be the Annual Rent in etlect for the Unat year ot t/'le prior term or extension period. as tne case may be, increased by percent ( %). O. Should (hiS Lease still be in effect at the conclusion 01 all of th' extension periods provided lor herein. this Lease shall continue in effec upon the same terms and conditions (other than Annual Rent which sna! be an amount equal to the Annual Rent in effect for the prior one (1) yea penod. Increased by percent ( _ %)1 (or a further perie< of one (1) year. and (or like annual periods thereafter. until and unles, terminated by either party by giving to the other written notice of its intentior to so terminate at least ninety (90) days betore the date this Lease expires 4. USE OF THE PROPERTY A. PCS may use the Property for any lawful purpose. including, witr,01J limitation. to construct. remove. replace. maintain, secure and operate z communications facility. including, without limitation. require<1 PCS antennz array (as such antenna array may be modified. added to, or substitute< from time to time) and antenna support structures. and for any other use~ incidental thereto. Each such antenna or antenna support structure maj be contigure<1 as requested by PCS from time to time, provided PCS obtains pursuant to Paragraph 4,8.. all permrts and approvals required by applicable jurisdictions for such requested ,configuration. OWNER shall have the right to approve plans for any improvements installed by PCS on the Property. which approval shall not be unreasonably withheld or delaye<1 Improvement or the Property to meet PCS's needs shall be at PCS's SOlE expense, and PCS shall maintain such improvements to the Property in < reasonable condition throughout the term. 8. OWNER acknowledges that PCS's ability to use the Property rOi its intended purposes is contingent upon PCS's obtaining and maintaining both betore and atter the Commencement Date, all of the certificates permits. licenses and other approvals (collectively, "Govemmenta Approvals') that may be required by any federal. state or localauthorit) for the foregoing uses and improvements to the Property desire<1 by PCS OWNER shall cooperate with PCS in PCS's eHorts to obtain suet Govemmental Approvals and shall take no action that would adversel~ affect PCS's obtaining or maintaining such Govemmental Approvals. 5. TERMINAT10N It any of the following occurs. PCS shall have the right to imme<1iate!l terminate this Lease by giving written notice to OWNER of such termination A. PCS determines. in its sole discretion. that it will be unable te obtain all necessary Governmental Approvals for pes's intended use c and improvements to tne Property desired by PCS: or 8. PCS's application tor any Govemmental Approvals necessary fa PCS's use of the Property and improvements desire<1 by PCS is denied: c C, any Governmental Approvals necessary for PCS's use at th, Property andlor improvements to the Property. whether now or hereafte desired by PCS. are canceled. expired. lapsed or are otherwise withdrawr terminated or denied so that PCS. in its reasonable judgment. determine: that it will no lor.ger be able to use the Property lor PCS.s intended use: c 0, the federal Communications Commission allocates th, frequencies at which PCS may operate its antennas and equipment an, may from time to time change such frequencies. Any change of thi nature that. in PCS's reasonable judgment. renders its operation of wireless communications facility at the Property obsolete: or <= if PCS determines that the Property has become unsuitable Ie pes's operations due to changes in system or network design or in th types of equipment used in such operations or PCS.s operations at Ih Property become unprofitable, Any termination notice rendere<1 by PCS pursuant to this Paragraph sha cause this lease to expire with the same force and effect as though the dat set forth in suc." notice were the date originally set as the expiration date ( this Lease and the parties shall make an appropriate adjustment. as of suc termination dare. with respect to pay.ments due to the other under thiS leas. Page I GROUND LEASE AGREEMEtv (FlORIDA 1015195) 6. A~SI'GNMENT ANO SU8LETTING A. Excepl to a .Pa~ner Company'- -A/filiate'- .Subsidiar( or a Subsidiarf or AHiliats of a Partner Company of PCS (as defined below), PCS snail not assign this lease, or allow it to be assigned. in whole or in part. by operation at law or otherwise or mortgage or pledge the same, or sublet the Property, or any part thereof, without the prior written consent 01 OWNER such consent not to be unreasonably withheld or delayed. OWNER's consent to an assignment or sublease shall be deemed given il OWNER does not respond to PCS's request within thirty (30) days atter OWNER's receipt 0/ such 'request. 8. NYNEX, Atlantic Sell. AirTouch Communications and U.S, West are each a Partner Company. An Affiliate at an entity is any corporation fifty-one percent (51 %) or more 0/ the stock at which is owned. directly or indirectly. by such entity. A Subsidiary 0/ an entity is any corporation eighty percent (80%) or more 01 which is owned by such entity. C. No consent by OWNER to any assignment or sublease by PCS shall relieve PCS 0/ any obligation to be performed by PCS under this lease. whether arising be/ore or alter the assignment or sublease. The consent by OWNER to any assignment or sublease shall not relieve PCS Irom the obligation to obtain OWNER's express written consent to any other assignment or sublease. O. Any sale or other transler, including by consolidation, merger or reorganization, 01 a majority 01 the voting stock 0/ PCS, it PCS is a corporation. or any sale or other transler 01 a majority in interest (whether 01 profits, losses. capital or voting power) or a majority 01 the persons compo.sing the managers 01 the partnership, il PCS is a partnership, shall not be an assignment lor purposes of this Paragraph 6. 7. UTlUT1ES PCS shall be responsible directly to the serving entities for all utilities required by PCS's use 01 the Property, however. OWNER agrees to cooperate with PCS in its efforts to obtain utilities tram any location provided by the OWNER or the servicing utility. Should electric power be provided by OWNER. PCS will install an electric meter and PCS's usage shall be read by OWNER or. at OWNER's option, by PCS, on an annual basis and the cost 01 electricity used by PCS shall be paid by PCS to OWNER annually as a payment separate Irom rent and shall be computed at ihe then-current public utility rate. 8. INOEMNIRCATlON ANO INSURANCE A. Subject to Paragraph 8.E.. PCS hereby agrees to indemnify and hold OWNER harmless lrom and against any and aU claims 01 liability for personal injury or property damage to the extent that they result Irom or arise out 01 (i) the acts or omissions 01 PCS, its agents and employees in, on or about the Property, excepting r.cwever. such claims or damages as may be due to or caused solely by the acts oromisslons 01 OWNER. its emploYe€s or agents. and/or (ii) PCS's breach at any term or condition 0/ this lease on PCS's part to be observed or perlormed. 8. Subject to Paragraph 8"E.. OWNER hereby agrees to indemnity and hold PCS harmless Irom. and against any and all claims 01 liability for personal injury or property damage to the extent that they result lrom or arise out 01 (i) the acts or omissions of OWNER, its agents and employees in. on or about ihe Property. excepting. however, such claims or damages as may be due to or caused solely by the acts 0/ PCS. its employees or agents. andlor (ii) OWNER's breach 01 any term or condition at this lease on OWNER's part to be observed or performed. C. PCS shall provide OWNER with a certificate 01 insurance. issued by an insurance company licensed to do business in the state in which the Property is located indicating that PCS carries comprehensive general liability insurance with limits at liability thereunder 0/ not less than $1 million combined single limit tor bodily injury andlor property damage together with an endorsement for contractual liability. Such insurance shall name OWNER as an additional insured with respect to the Property. PCS will provide OWNER with a renewal certificate within ten (10) business days 01 OWNER's request lor such certificate. Any insurance required to be provided by PCS under this Paragraph 8 may be provided by a blankel insurance policy covering the Property and other locations of PCS. provided suct1lJlanket insurance policy complies with all 01 the other requirements 01 ltlis lease with respect to the type and amount at insurance required, PCS may also fulfill its requirements under trll~ Paragraph 8 through a program at self.insurance, II PCS elects to selt insure: then PCS shall lur,nish OWNER with a letter stating that there I: a self'lnsurance prog~am In eHect that provides for the same. or greater coverage than reqUired at PCS herein. 0, OWNER shall provide PCS with a certificate 0' insurance issue( by an insurance company licensed to do business in the state i~ whic: the Property is located indicating that OWNER carries comprehensiv' general liability insurance with limits 01 liability thereunder of not les: than :s 1 million combined single limit for bodily injury andlor proper!" damage. together With an endorsement for contractual liability, Suc: insurance shall name PCS as an additional insured with respect to tho Property. OWNER will provide PCS with a renewal certilicate within tel (10) business days 0/ PCS.s request for such certificate. E. Each such policy shall be written so as to provide that the insuranc' company waives all rights 01. recovery by way 01 subrogation it may hav' against OWNER or PCS in connection with any loss or damage covere- by such poliCf. The parties lurther agree and hereby release each othe with respect to any claim (including a claim lor negligence) which tho other party may have against such party for loss. damage or destructio. ai, or liability lor damages to, the property 0/ the other occurring durinl the term 01 this lease, as same may be extended, and normally covere- under a fire insurance policy with exter.ded coverage. Notwithstandin, anything contained in this lease to the contrary, the provisions 0/ thi: Paragraph 8.E. shall control. 9. PCS DEFAULTS A. The occurrence 01 anyone or more 01 the fallowing events sha constitute an "Event 01 Delault" hereunder by pcs: (1) The lailure by PCS to make any payment at rent or any othe payment required to be made by PCS hereunder, as and when due, wher such failure shall continue for a period of twenty (20) days after writte notice thereol is received by PCS tram OWNER. (2) The lailure by PCS to observe or perform any 01 th covenants or provisions 01 this lease to be observed or performed '0 PCS, other than as specified in Paragraph 9.A.(1), where such lailur shall continue for a period 01 thirty (30) days after written notice. there< is received by PCS 'rom OWNER; provided, however. that it shall not '0 deemed an Event 01 Delault by PCS if PCS shall commence to cur such failure within said thirty (30) day period and thereafter diligentl prosecutes such cure to completion. B. ' II there occurs an Event 01 Oelault by PCS, in addition to an other remedies available to OWNER at law or in equity. OWNER she have the option to terminate this lease and all rights at PCS hereunde C. It there occurs an Event 01 Delault by PCS, OWNER shall n< have the right. prior to the termination at this Lease by a court at compete! jurisdiction. to re-enter the Property andlor remove persons or proper1 Irom the Property. 10. NOTICES All notices hereunder must be in writing and. unless otherwise provide herein. shall be deemed validly given il sent by certified mail. retum recei: requested. addressed as tallows (or to any other mailing address whic the party to be notified may designate to the other party by such notic' or as otherwise provided under applicable state law. Should OWNER PCS have a change at address. the other party shall immediate:ly t notified as provided in this Paragraph 01 such change. Unless OWNE otherwise specifies in writing. rent checks 'rom PCS shall be sent to It person listed below to whom notices are sent. PCS: PCS PRIMECO. loP.. a Delaware limited partnersl1ip Address: Telephone Number: (_) With a copy to: (FlORIDA 1015/95) Page 2 GROUND LEASE AGREEME: Address. Artn: Legal Oepanmenr Telephone Number: ( _ ) OWNER: Ann: Address: Telephone Number: (_) 11. SALE OR TRANSFER BY OWNER Should OWNER, at any time during the term of this Lease, sell. lease, transfer or otherwise convey all or any part of OWNER's Property to any transferee other than PCS. then such transfer shall be under and subject to this Lease and all of PCS's rights hereunder. 12. HAZARDOUS SUBSTANCES A, OWNER warrants and agrees that neither OWNER nor, to OWNER's knowledge. any ttlird party has used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any Hazardous Material (as defined in Paragraph 12.8.) on, under, about or within OWNER's Property in violation of any law or regulation. OWNER and PCS aach agree that they will not use, generate, store or dispose of any Hazardous Material (as defined in Paragraph 12.8.) on, under, about or within OWNER's Property in violation of any applicable law or regulation. 8. OWNER and PCS each agree to defend and indemnity the other and the other's partners. affiliates. agents and employees against any and all losses. liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any warranty or agreement contained in Paragraph 12,A. As used in Paragraph 12.A.. "Hazardous Material" shall mean any substance, chemical or waste identified as hazardous. toxic or dangerous in any applicable federal, state or local law or regulation (including, petroleum and asbestos). 13. CONDEMNATION A. In the event the whole of OWNER's Property., including without limitation the Property, shall be taken or condemned, ,either temporarily or permanently. for public purposes. or sold to a condemning authority under threat at condemnation to prevent taking, then this Lease shall forthwith automatically cease and terminate. 8. In the event any portion of the Property shall be taken or ccndemned. either temporarily or permanently, for public purposes. or sold to a conderiming authority under threat of condemnation to prevent taking, then OWNER agrees that PCS may use and/or construct upon an alternative portion at OWNE,g's Property which is equally suitable for PCS's purposes, provided such space is available, The exact site to which PCS may relocate will be determined by OWNER. and it may be upon any portion of OWNER's Property (or other property owned or controlled by OWNER), provided that PCS reasonably approves the site as equally suitable for PCS's intended uses. OWNER will designate a site to which PCS may relocate prior to the taking, condemnation or sale. In the avent no alternative portion ot the OWNER's Property is equally suitable for the purposes ot PCS. then this Leasa shall forthwith automatically cease and terminate. C. OWNEr:1 shall receive the antire condemnation award lor land and such other improvements as are paid lor by OWNER. and PCS hereby expressly assigns to OWNER any and all right, title and interest at PCS now or hereafter arising in and to any such award. PCS shall have the right to recover trom such authority. but not trom OWNER, any compensation as may be awarded to PCS on account at the leasehold interest. moving and relocation expenses. and depreciation to and removal of [he personal property and tixtures 01 PCS. 14. LIENS PCS shall xeeo the ~roper:y free from any liens arising out of any work periormed.. maCenals ,urnlsned, or obligations incurred by or lor PCS. PCS shall, Within twenty (20) days lollow.ng the imposition ot any such lien. cause the same to, be released 01 record by payment or posting at a proper bond. No work 'Nnlch OWNEr:1 permits PCS to periorm on the Properly shall be deemed to be lor the use and bene/it at OWNEFl so tnat no mechanics or ether lien snail be allowed against the estate of OWNER by reason at its consent to such work. OWNER shall have the right to post notices that it is not responsible for payment for any such work. 15. TAXES PCS shall be liable for and shall pay to the applicable taxing authority it billed directly to PCS, or to OWNEFl if billed to OWNER. upon thirty (30) days prior written notice from OWNEFl. any and all taxes and assessments levied against any personal property Or trade or other lixtures placed by PCS in or about the Property. PCS shall pay as additional rent any increases in real property taxes levied against OWNER's Property as a result of the improvements constructed by PCS on the Property. PCS will not be responsible (or any increases in real property taxes which are a result of reassessment of OWNER's Property due to any sale or transfer of ownership thereat. 16. QUIET ENJOYMENT AND NON-INTERFERENCE A. OWNER warrants and agrees that PCS, upon paying the rent and performing the covenants herein provided. shall peaceably and quietly have and enjoy the Property. 8. OWNER hereby grants to PCS. as a primary inducement to PCS's entering into this Lease. the first priority right to instaJl'its antennas and operate its 'Mreless communications facility on OWNER'S Property. From time to time OWNER may grant to other entities the right to operate wireless ccmmunications facilities on OWNER'S Property and/or the right to install antennas in connection with the operation of such facilities or other communications facilities; provided. however that OWNER shall not allow the operation 01 such facilities and antef1nas by other occupants, to,interfere witt! the operation of PCS.s antennas and equipment asitexistsatttle time of such other oc:upant's installation or as it may be modified at any time curing the term of this Lease, as the same may be extended. It any such interference occurs, OWNER agrees to eliminate or cause the elimination 01 ,sue." interference .Nith PCS.s operations within a reasonable time after r~pt 01 PCS.s notice at such interference and. il necessary, to cause the interfering party to cease its operations. If such interference continues lor more ttl<lI1 thirty (30) days after PCS's notice to OWNER with respect to' such interference, then PCS shall have the right, in addition to its right to pursue any or all remedies available to it at law or in equity. to imme<:flately terminate this Lease by giving written notice to OWNER of such termination. 17. RIGHTS TO EQUIPMENT; CONDITION ON SURRENDER A. PCS.s antennas and equipment shalt remain personal to.and the property of PCS. At the termination or expiration at this Lease, PCS shalf have the right. but not the obligation to remove its antef1nas: and/or equipment. If PCS elects to remove its antennas and' equipment PCS shalf repair any damage caused by such removal. and' shall otherwise surrender the Property at the expiration at. the term. as same may haVE been extended. or earlier termination thereot. in good condition. ordinal) wear and tear. damage by tire and otller casualty excepted. Any of PCS.~ aquipment or other property that has not been removed from the Propert] at the time 01 Lease termination shall be deemed abandoned by PC~ and OWNER shalf be free to dispose at same in any, manner OWNEF chooses and without any liability to PCS therefor. 8. Any claims relating to the condition of the Property must bE presented by OWNER in writing to PCS within thirty (30) days after tnf termination or expiration of this Lease or OWNER sllall be deemed (( have irrevocably waived any and all such claims. 18. BROKERS OWNER and PCS represent to each other that they have not ne<;lotiate< with any real estate broker in connection with this Lease. OWNER an. PCS agree that should any claim be made' against. ttle other for a, rea (FLORIDA 10/5/95) Page 3 GROUND LEASE AGREEMEN eSlate broker's commission, linder'3 lee or the like by reason 01 the acts 01 3uch party, the party upon whose acts such claim is predicted shall IndemnIty and hold the other party Iree and harmless from all losses. costs. damages, claims. liabilities and expenses in connec:ion therewith (including. bur not limited to. reasonable legal lees) and shall de/end such action by legal counsel reasonably acceptable to the indemnified other part'/. 19, ESTOPPEL CERTlFICATES A. OWNER, at the request 01 PCS, shall provide pes with a certificate stating: (1) whether OWNEi=l has any claim against PCS and it so. stating the nature of such claim: (2) that OWNER recognizes PCS's right to PCS's antennas. equipment and other property; (3) tMt PCS has the right to remove PCS's equipment and other propert'/ from the Propert'/ notwithstanding that same may be coosidered a fixture under local law; and (4) that OWNER has no interest in and disclaims any interest to PCS's equipment and other property. 8, PCS. at the request of OWNER. shall provide OWNER with a certificate stating: (1) that this lease is unmodified and in full force and etfect (or, if there, has been any modification, that the same is in full force and etfect as modified and stating the modification); (2) whether or not. to PCS's knowledge, there are then existing any set-offs, or defenses against the enforcement of any of the agr8€ments, terms, covenants or conditions hereof upon the part of PCS to be performed or complied with (and. if so specifying the same); and (3') the dates. if any, to whiCh the rent has been paid in advance. 20. MISCELLANEOUS PROVISIONS A' OWNER warrants and agrees that OWNER is seized of good and sufficient title to and interest in the Property and has fuil authority to enter into and execute this Lease and that there are no undisclosed liens, jL.dgments or imp€diments of title on OWNER's Property that would affect this Lease. 8. This Lease, including attached exhibits which are hereby incorporated by reference, incorporates all agreements and understandings between OWNER and PCS, and no verbal agreements or understandings shail be binding upon either OWNER or PCS, and any addition, variation or modification to this lease shail be ineffective unless made in writing and signed by the parties. C. OWNER agrees that OWNER's Property. and ail improvements comply and during the term of this lease shall continue to comply with all building, life/safety. disability and other laws. codes and regulations of any applicable govemmental or quasi-govemmental authority. All such compliance shall be accomplished at OWNER's sole cost and expense. D. This Lease and the pertormance hereof shall be govemed, ' interpreted, construed and regulated by the laws of the State of _. This Lease, and each and every covenant and condition herein. is intended to benefit the Property and shall extend to and bind the heirs, personal representatives. successors and assigns of the parties. F. The parties agree that all of the provisions hereof shall be construed as bot:-t covenants and conditions. the same as if the words irT1porting / / / / / / / / / / / / / / / s...cn covenar.rs and conditions had been used in eaCh sepa r ra e paragrapr G, The parties acknowledge that each has had an 'ty . , " opportunl . reView and negctlate thIS Lease and have executed 'his L I'" . ease on y aile such review and negotiation, The language of each part at this Leas shall be construed simply and according to its lair mean' d ,~ It1g an "" Lease shall not be construed more strictly in favor or against ei;her part': H. At OWNER's option. this Lease shall be SUbordinate to all mortgage by OWNEi=l which from tIme to time may encumber all or all part of the Property, provided that every such mortgagee shall rec~niz (in writing and in a form acceptable to PCS's COunSel) the validity of thl Lease in the event of a foreclosure of OWNER's interest and also PCS' right to remain in occupancy and have access to the Property as long a: PCS is not in default of this lease. PCS shall execute whateve instruments may reasonably be required to evidence this subordination If. as of the date of execution of this lease. there is any deed of trust ground lease or other similar encumbrance affecting OWNER's Propert'1 OWNER agrees to use its best efforts in cooperating with PCS to obtai. from the holder of such encumbrance an agreement that PCS shall roc be disturbed in its possession, use and enjoyment of the Property. I. It OWNER breaches this lease in any manner or substantiaJl' breaches any material term contained in any mortgage or deed of tru~ superior to PCS's estate under this lease (other than any mortgage c deed of trust tor which PCS has obtained a non-disturbance' agreemen in accordance ,NTth Paragraph 20.H.) or contained in any lease unde which OWNER holds title to any portion of OWNER's Property, and ' OWNER fails to commence to cure such breaCh within thirty '(30) day: after receiving a written notice from PCS exactly spedfying the violatio. (or if OWNER tails thereafter to diligently prosecute the cure t< completion), then PCS may enforce each of its rights and remediesunde this Lease or provided by law or it may (although it shall not be obligate. to do so) cure OWNER's breach or perform OWNER's obligations (01 OWNER's behaJt and at OWNER's expense) and require the OWNER tl reimburse (or offset against rent) all reasonable expenses incurred il doing so plus interest (from the date such expenses, are incurred unt: reimbursement) at ten percent (10%) per annum. J, If any portion of this lease is declared,b1f a court of com peter jurisdiction to be invalid or unenforceable. then such portion shall b. deemed modified to the extent necessary in such court's opinion to rende such portion enforceable and. as so modified, such portion and th, balance ofthis Lease shall continue in full force and etfect. K. It either party institutes any action or proceeding in court to enforc any provision hereof. or any action for damages tor any alleged breae: of any provision hereof, then the prevailing party in such action e proceeding shall be entitled to receive from the non-prevailing party sue: amount as the court may adjudge to be reasonable attomeys' fees Ie the services rendered to the prevailing party, together with its othe reasonable litigation expenses. L In addition to the other remedies provided for in this Lease~ OWNEI and PCS shall be entitled to immediate restraint by injunction of any violatio of any of the covenants, conditions or provisions of'this lease. (FLORIO,), 1015/95) Page .J GROUNQ LEASE AGREEMc/\ .1.1: The captions at the paragraphs at this Lease are lor convenience at reference only and shall not affect the interpretation at this Lease. N, Concurrenlly with the execution at this lease, OWNER shall execute belore a notary and deliver to PCS for recording a "Memorandum at lease Agreement" in the tarm at the attached Exhibit oS". Such Memorandum shall not disclose any tlnancial terms. unless required to do so by the laws at such jurisdiction. IN WITNESS WHEREOF, OWNER and PCS have duly executed this lease as at the day and year first above written. pes: PCS PRIMECO, LP" a Delaware limited partnership By: Name: Its: Witnesses: (1) (2) (PRINT NAME SlGNED ABOVE) (PflINT NAME SlGNED ABOVE) / / I / / I / / / OWNER: By: Name: Its: Its: S.S./Tax No.: Witnesses: (1) (2) (PRINT NAME SIGNED ABOVE) (PRINT NAME SIGNED ABOVE) By: Name: Its: S.S./Tax No.: Witnesses: (1) (2) (PRINT ,'lAME SIGNED ABOVE) (PRINT NAME SIGNED ABOVE) (FlORIDA 10/S19S) Page 5 GROUND LEASE AGREEMENT . .. . . EXHIBIT" A 1" LEGAL DESCRIPTION OF OWNER'S PROPERTY SITE 10: (FlORIDA 1015195) GROUND LEASE AGREEMEfoi - . EXHIBIT "A2" DEPICTION OF PROPERTY SITE ID: " (FlORIDA tOlSl95) GROUND LEASE AGREEMEN J)i'."S!RUMENT PREPARED BY: ~.~. !"lAME: ADDRESS: EXHIBIT liB II SHORT FORM LEASE day at . 19_. by and between COWNER") whose address is , and PCS pRIMECO, Lp" a Delaware limited part/1ership THIS SHORT FORM LEASE. made and entered into as of this (-PCS) whose address is 1. OWNER. on the terms and conditions set torth in an unrecorded document dated . 19_, and entitled -Ground Lease Agreement", which terms and conditions are incorporated herein by relerence, and in consideration 01 the rent and covenants therein provided, does hereby lease to PCS, and PCS hereby rents and accepts trom OWNER, certain real property (-Property") located at , in the City of . County of State of' , within the property of OWNER which is described in Exhibit "A 1" attached hereto and incorporated hereby by this reference (-OWNER's Property), together with a non-exclusive easement to access the Property and to install and maintain utilities, for an initial term of ( _ ) years commencing on which term may be extended by PCS for ( _ ) additional ( _) year period(s) subject to the conditions of Paragraph 3.8 01 the Ground Lease Agreement. 2. Pursuant to the Ground lease Agreement. among other things, OWNER shall not cause or permit any use of the OWNER's Property which interferes with or impairs the quality 01 the communications services being rendered by PCS from the Property. IN WITNESS WHEREOF, OWNER and PCS have duly executed this Short Form lease as of the day and year first above written. OWNER: pcs: PCS PRIMECO, LP.. a Delaware limited partnership By: By: Name: Name: (PRINT NAME SIGNED ABOVE) (PRINT NAME SIGNED ABOVE) AS its: As its: Address: Address: (1) (2) Signed in the presence 01 two witnesses: (1l (2) Signed in the presence of two witnesses: (PRINT NAME SIGNEiJ ABOVE) (PRINT NAME SIGNED ABOVE) (PRINT NAME SIGNED ABOVE) (PRINT NAME SiGNED ABOVE) By: Name: (PRINT NAME SIGNED ABOv:) As its: Address: Signed in ene presence of two witnesses: (I) (2) OWNER INITIALS (PRINT NAME SIGNED ABOVE) (PRINT NAME SIGNED ABovEI (FLORIDA 1't~S) { ..u' " . Page t PCS INITIALS .~ GROUND LEASE AGREEMENT -, " , . , - , . ~ EXHIBIT "B" NOTARIES - SHORT FORM LEASE STATE OF COUNTY OF The foregoing instrument was acknowledged before me this who is personally known to me or has produced day 01 . 19_. by as identification. (AFAX NOTARI"L SEAL) (OFFICIAL NOTARY SIGNATURE) Notary Public - Slate 01 Florida My commission expires: (Prll1ted. Typed or Stamped Name 01 Notary) NQTARY 8J..OCK 1992 -INOIVIOUAl.. Commission Number. STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of . 19~ by 01 corporation. on behalf 01 the corporation. He/She is personally known to me or has produced ~ as a as identification, (AFFlX ,\jOT....RIAL SEAL> (OFFICIAL NOTARY SIGNATURE) I~otary Public - State of Florida My commission expires: (Printed, Typed or Stamped Name of Notary) NOTARY BLOCK 1992 - COAPORAnON Commission Number. STATE OF COUNTY OF The foregoing instrument was acknowledged before me this partner (or agent) on behalf of has produced as identification. day of .19~by , a partnership, He/She is personally known to me or (AFFIX ,..OT....RIAL SEAL) (OFFICI....L NOTARY SIGNATURE) Notary Public - State of Florida My commission expires: (Printed. Typed or Stamped Name of Notary) NOTARY SLOCK /992 - PARTNERSHIP Commission Number: OWNER INITIALS (FLORIDA 9/T 5/95) Page 2 PCS,IN1TIAlS GROUND LEASE AGREEMENT .,. ,c .. ")". .. :---1:~. 11 COMMISSION AGENDA ITEM'D REGULAR X CONSENT INFOR1V1ATIONAL August 26. 1996 Meeting MGR.IIJ/fl/DEPT Authorization REQUEST: City Manager requesting Commission consideration of approval of the first reading of an ordinance providing for a lease of City property located at the sewer plant site on State Road 434 adjacent to the Winter Springs Golf Course to PrimeCo Personal Communications of Tampa, Florida for the purpose of erecting a tele-communications tower. PURPOSE: The purpose of this Agenda is for the Commission to decide if it desires to lease property located at the City Sewer Plant on State Road 434 adjacent to the Winter Springs Golf Course to erect a 120 foot monopole tele-communications tower for $1000 a month and space on the tower for possible City communication uses. City Staff has been negotiating for several weeks with PrimeCo Personal Communications relative to their desire to erect two 120 foot monopole tele- communications towers in Winter Springs at the following sites: 1) On City Sewer Plant property located on State Road 434 adjacent to the Winter Springs Golf Course. 2) On Florida Power right-of-way located east of the intersection of Shore Road and Panama Road in the Ranchlands. On City property the City can negotiate a rental arrangement and other considerations. The City has negotiated a rental rate of $1,000 a month or $12,000 annually and space on the towers for communications needs the City may have in the future. The average rental rate for a tower of this type is about $700 monthly. Page 1 . - - . - - ... -- . - . - - -- -- _. ~ , I ,;/ '. " APPUCABLE CODE: Section 4.14(6) Actions requiring an Ordinance. Section 4.14(6) requires that the conveyance or lease of any City owned land to be leased or conveyed by City Ordinance. CONSIDERATIONS: The City has no ability to demand a rental fee on the Florida Power site, however, we are demanding that space be reserved on this tower also for future City communication needs. Both towers will require height variances. The sewer plant will need a 70 foot variance. The Florida Power site will require a 85 foot variance. A 55 foot variance was issued at the Florida Power site for another use in 1990. The height variance required for the tower site will go before the Board of Adjustment on September 5, 1996 and the Commission on September 9, 1996. The second reading on tlt~ lease ordinance will be before the Commission on September 9, 1996. ISSUES: The only significant issue is whether or not the 120 foot height will be found to be objectionable. .' FUNDING: No funding is required from the City for this item. IMPLEMENTATION SCHEDULE: August 26, 1996, Commission consideration of the fIrst reading of the lease ordinance for the sewer plant site. September 5, 1996, Board of Adjustments consideration of height variances for the sewer plant site and the Florida Power site. September 9, 1996, Commission consideration of the height variances for the sewer plant site and the Florida Power site and approval of the second reading of the lease ordinance. Page 2 ~ & I . :" 01' .' RECOM:MENDA TION: ATTACHMENTS: The Ordinance will be available on Friday, August 23, 1996. COMMISSION ACTION: Page 3