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HomeMy WebLinkAbout2000 - Option & Lease AgreementAddendum to Option and Lease Agreement Dated /~ 2000 by an between CITY F SEBASTIAN, as LESSOR, and BELLSOUTH MOBILITY CIE., as TENAN~~ GL~ 1. Insert as the next to last paragraph in the Option Language the following: Further, during the Option Period TENANT shall be allowed to maintain the existing temporary facility located on the 1201 Main Street site. The monthly rent for the temporary facility during the first six months of the Option Period shall be One Thousand Dollars ($1,000.00), which shall increase for the seventh and any subsequent month to the monthly amount of One Thousand Five Hundred Dollars ($1,500.00). In the event the Option terminates without exercise of the same, the temporary facilities shall be removed by TENANT and the site restored within ninety (90) days. Rent shall continue to be due until such removal and restoration is completed. 2. In paragraph 3 of the lease, insert before "plus applicable taxes..." the following "to be adjusted annually as set forth below," 3. Pazagraph 5 shall be replaced with the following: On the anniversary date of the exercise of the Option, the annual rental shall be adjusted upwards four percent over the amount for the prior year. 4. Delete the last sentence in paragraph 6 and add the following sentence: The rental amount for each such one yeaz extension shall continue to be subject to the rent adjustment set forth in paragraph 5, above. 5. In the first sentence in pazagraph 7 after ...structure of efficient height add: Up to 175 feet 6. In the second sentence of paragraph 7 after "TENANT may at its discretion modify it's antenna structure or building., ." add: However, the antenna shall at all times be covered with an antenna canister or other concealing device agreeable to LESSOR. 7. In pazagraph 11 delete the first 2 sentences and replace it with the following: Tenant upon termination of this Agreement shall, subject to Lessor's Retention Option (defined below), within a reasonable period, remove its personal property and fixtures and restore the Property to its original above grade condifion, reasonable wear and teaz excepted. At Lessor's option when this is Agreement is terminated and upon Lessor's advance written notice to Tenant (the "Lessor's Retention Opfion"), Tenant will leave i) the telecommunications tower structure, the foundation and security fence or (ii) the foundation and security fence; provided, however, that if the termination occurs during the first ten (10) years of the lease term, Lessor shall pay to Tenant within ten (10) days after demand, the then fair market value of the tower as reasonable estimated by Tenant. If Lessor shall fail to timely make such payment, then Tenant shall have the right to remove the telecommunications tower structure. Any conveyance of the telecommunications tower structure to the Lessor shall be in "as is, where is, with all faults" condition and shall be by quitclaim bill of sale. 8. In paragraph 121ast sentence delete "sole" and add "TENANTS reasonable judgment." 9. At the end of paragraph 16 add: And venue for any action related hereto shall lie exclusively in Indian River County, Florida. 10. The last sentence in pazagraph 17 should be changed to read as follows: Notwithstanding the above, TENANT may permit other parties to co-locate and/or sublease antenna space on the Property with no obligation to LESSOR, provided no use of ground structures is required, as long as this agreement is in effect. 1 L In paragraph 24 remove the last line of the pazagraph after the comma and add the following: Other than TENANT'S obligation to remove its property and pay rent during the pendency of said removal as provided in paragraph 11, above. This Addendum is attached to the Agreement, dated as os even date therewith and made a part thereof. The parties have signified agreement to this Addendum by initialing it as follows: Initials as to LESSOR: r~" Initials as to TENANT: !~- L>tissox ATTEST: Kat'hry M. O'Halloran, CMC/AAE City Clerk THE CITY OF SEBASTIAN: Approved as to Form and Legality for Reliance by the City of Sebastian only: ' I; Rioh Stringer, C ty Attorney STATE OF'FLORIDA COUNTY OF The o egoing instrument was acknowledged before me this ~~~ day of ~r,~e.~ aooo, 'by Terrance 'R. Moore and Kathryn M. O'Ha oran, as City Manager and City Clerk, respectively, of the City of Sebastian, a Florida municipal corporation, who are personally known to me or wigo-- as i~e'nti-fication and who did ( 'did not) ake an oath. ~~ NOTARY PUBLIC Seal)~ Print Name ; ~jv ~ '/ ° ~~~ :9a~ My Commission Expires Y~ ~%ip~., ANN V. ROUSSEAU :«~ MY COMMISSION 6 (,(, 7 ry~ggp ' = EXPIRES. March t8, 2002 ~Fa 6ontlaC Thn~NOlery PU6tic UMenrrrten 10 Via 5 OPTION AND LEASE AGREEMENT This Agreement is made this /,x~ day of , 2000, between CITY OF SEBASTIAN, a Florida nicipal corporation, whose address is 1225 Main Street Se astian, FL 32958, hereinafter designated LESSOR, and BELLSOUTH MOBILITY - with offices at 5201 Congress Avenue, Boca Raton, F1 33487, hereinafter designated TENANT. ~ccC+, B1/.•~Fi~klnrct@, ifs s`ot~ A7~.~G~.e G RECITALS: LESSOR is the owner of certain real property located at 1201 Main Street, Sebastian, Indian River County,. State of Florida, and TENANT desires to obtain an Option to lease a portion of said real property, containing approximately 2500 square feet, together with a twenty foot (20') wide right of way for access thereto (said leased parcel and right of way hereinafter called "Property"). The Property is more specifically described in and substantially shown outlined in red on Exhibit "A" attached hereto and made a part hereof. NOW, THEREFORE, in consideration of a sum of FIVE HUNDRED Dollars ($500.00), hereinafter referred to as "Option Money", to be paid by TENANT to the LESSOR, which TENANT will provide upon its execution of this Agreement, the LESSOR hereby grants to TENANT the right and Option to lease said portion of said real property, including a right of way for access thereto, for the term and in accordance with the covenants and conditions set forth herein. The Option may be exercised at any time within twelve (12) months from final execution of this Agreement by LESSOR. At TENANT'S election, and upon TENANT'S prior written notification to LESSOR, the time during which the Option may be exercised may be further extended for one (1) additional period of six (6) months, with an additional payment of ONE THOUSAND Dollars ($1,000.00) by TENANT to LESSOR for the Option Period so extended. The time during which the Option may be exercised may be further extended by mutual agreement in writing. If during said Option Period, or during the term of the lease, if the Option is exercised, the LESSOR decides to subdivide, sell or change the 1 status of the Property or Lessor's property contiguous thereto, LESSOR shall immediately notify TENANT in writing so that TENANT can take steps necessary to protect TENANT'S interest in the Property. LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute this Agreement. .LESSOR further covenants that there are no other liens, judgments or impediments of title on the Property. This Option may not be sold, assigned or transferred at any time except, to TENANT'S principal, affiliates or subsidiaries of its principal. As to other parties, this Option may not be sold, assigned or transferred without the written consent of the LESSOR, such consent not to be unreasonably withheld. Should TENANT fail to exercise this Option or any extension thereof within the time herein limited, all rights and privileges granted hereunder shall be deemed completely surrendered, this Option terminated, and LESSOR shall retain all money paid for the Option, and no additional money shall be payable by either party to the other. The LESSOR shall permit TENANT during the Option Period free ingress and egress to the Property to conduct such surveys, structural strength analysis, subsurface boring tests and other activities of similar nature, as TENANT may deem necessary, at the sole cost of TENANT. In addition, TENANT shall have the right to file any applications for certificates, permits and other approvals that may be required by any federal, state or local authorities. LESSOR agrees to cooperate with TENANT in its efforts to obtain such approvals and sign such papers as may be required to file applications with the appropriate authorities. Notice of the exercise of the Option shall be given by TENANT to the LESSOR, in writing by certified mail, return receipt requested. Notice shall be deemed effective on the date it is posted. On the date of such notice, the following Agreement shall take effect: LEASE AGREEMENT 1. LESSOR hereby leases to TENANT that certain parcel of real property, containing approximately 2500 square feet, situated at 1201 Main Street, Sebastian, Indian River County, State of Florida, together with the nonexclusive right for ingress and egress, seven (7) days a week, twenty-four (24) hours a day, on foot or motor vehicle, including trucks, and for the installation 2 and maintenance of utility wires, cables, conduits and pipes over, under or along a twenty foot (20') wide right of way extending from the nearest public right of way, namely Cross Street, to the leased parcel, said leased parcel and right of way for access being substantially as described herein in Exhibit "A" and as shown enclosed within red lines on Exhibit "A" attached hereto and made a part hereof. Said leased parcel and right of way for access shall be hereinafter referred to as "Property". LESSOR shall cooperate with TENANT in TENANT'S effort to obtain utility services along said right of way by signing such documents or easements as may be required by said utility companies. In the event any public utility is unable to use the aforementioned right of way, the LESSOR hereby agrees to grant an alternative right of way or utility easement either to the TENANT or to the public utility at no .cost to the TENANT. 2. LESSOR also hereby grants to TENANT the right to survey said Property, and the legal description on said survey shall then become Exhibit "B", which shall be attached hereto and made a part hereof, and shall control in the event of discrepancies between it and Exhibit "A". LESSOR grants TENANT the right to take measurements, make calculations, and to note other structures, setbacks, uses, or other information as deemed by TENANT to be relevant and pertinent, as such information relates to LESSOR'S real property, leased or otherwise abutting or surrounding the Property. Cost for such survey work shall be borne by the TENANT. 3. This Agreement shall be for an initial term of five (5) years beginning on the date the Option is exercised by TENANT at an annual rental of Eighteen Thousand Dollars ($18,OOOZ, plus applicable taxes, to be paid in equal monthly installments on the first day of the month, in advance to City of Sebastian or to such other person, firm or place as the LESSOR may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date. 4. TENANT shall have the option to extend this lease for four (4) additional five (5) year terms, and such extensions shall automatically occur unless TENANT gives LESSOR written notice of its intention not to extend this Lease Agreement at least six (6) months prior to the end of the current term. 5. The annual rental for the first (1st) five extension term shall be increased Dollars ( ); the second (2nd) five (5) extension term shall be increased Dollars ( ); the third (3rd) five (5) extension term shall be increased Dollars ( ); and the fourth (4th) five year extension term shall be increased Dollars ( ) • year to year to year to (5) to 3 6. If at the end of the fourth (4th) five (5) year extension term this Agreement has not been terminated by either party by giving to the other written notice of an intention to terminate it at least six (6) months prior to the end of such term, this Agreement shall continue in force upon the same covenants, terms and conditions for a further term of one (1) year, and for annual terms thereafter until terminated by either party by giving to the other written notice of its intention to so terminate at least six (6) months prior to the end of such term. Monthly rental for this period shall be equal to the rent paid for the last month of the fourth (4th) five (5) year extension term. 7. TENANT shall use the Property for the purpose of constructing, maintaining and operating a Communications Facility and uses incidental thereto, consisting of a building or buildings as necessary now or in the future to shelter telecommunications equipment and related office space, a free standing monopole or three sided antenna structure of sufficient height now or in the future to meet TENANT's telecommunication needs and all necessary connecting appurtenances. TENANT may at its discretion modify its antenna structure or building(s). A security fence consisting of chain link construction or similar but comparable construction may at the option of TENANT be placed around the perimeter of the Property (not including the access easement). All improvements shall be at TENANT'S expense. LESSOR grants TENANT the right to use adjoining and adjacent land as is reasonably required during construction, installation, maintenance, and operation of the Communications Facility. TENANT will maintain the Property in a reasonable condition. It is understood and agreed that TENANT~s ability to use the Property is contingent upon its obtaining after the execution date of this Agreement, all of the certificates, permits and other approvals that may be required by any federal, state or local authorities. LESSOR shall cooperate with TENANT in its effort to obtain such approvals, including dedicating right of way or other customary extractions, and shall take no action which would adversely affect the status of the Property with respect to the proposed use thereof by TENANT. LESSOR agrees to sign such papers as are customarily and reasonably required to file applications with the appropriate zoning authority and/or commission for the proper zoning of the Property as required for the use intended by the TENANT. TENANT will perform all other acts and bear expenses associated with the rezoning procedure. LESSOR agrees not to register any written or verbal opposition to the rezoning procedures. Notwithstanding any other termination rights available to TENANT under this Agreement, TENANT, at its sole and absolute discretion, shall have the right to terminate this Agreement with ninety (90) days prior written notice to LESSOR and a lump sum payment to LESSOR in an amount equal to six months rental at the rate in effect at the time of termination. Notice of the TENANT'S exercise of its right to terminate shall be given to 4 LESSOR in writing by certified mail, return receipt requested, and shall be effective upon receipt of such notice by the LESSOR as evidenced by the return receipt. All rentals paid to said termination date shall be retained by the LESSOR. ,Upon such termination, this Agreement shall become null and void and all the parties shall have no further obligations, including the payment of money, to each other. 8. TENANT shall indemnify and hold LESSOR harmless against any claims of liability or loss from personal injury or property damage resulting from or arising out of the use and occupancy of the Property by the TENANT, its servants or agents, excepting, however, such claims or damages as may be due to or caused by the acts of the LESSOR, or its servants or agents. 9. LESSOR agrees that TENANT may self-insure against any loss or damage which could be covered by a commercial general public liability insurance policy. 10. TENANT shall be responsible for making any necessary returns for and paying any and all property taxes separately levied or assessed against its improvements on the Property. TENANT shall reimburse LESSOR as additional rent for any increase in real estate taxes levied against the Property which are directly attributable to the improvements constructed by TENANT and are not separately levied or assessed against TENANT'S improvements by the taxing authorities. 11. TENANT upon termination of this Agreement, shall, within a reasonable period, remove its personal property and fixtures and restore the Property to its original above grade condition, reasonable wear and tear excepted. At LESSOR'S option when this Agreement is terminated and upon LESSOR'S advance written notice to TENANT, TENANT will leave the foundation and security fence to become property of LESSOR. If such time for removal causes TENANT to remain on the Property after termination of this Agreement, TENANT shall pay rent at the then existing monthly rate or on the existing monthly pro-rata basis if based upon a longer payment term, until such time as the removal of personal property and fixtures are completed. 12. Should the LESSOR, at any time during the term of this Agreement, decide to sell all or any part of his real property which includes the parcel of property leased by TENANT herein and/or the right of way thereto to a purchaser other than TENANT, such sale shall be under and subject to this Agreement and TENANT'S rights hereunder. LESSOR agrees not to sell, lease or use any other areas of the larger parcel upon which the Property is situated for the placement of other communications facilities if, in TENANT'S sole judgment, such installation would interfere with 5 the facilities in use by TENANT. 13. LESSOR covenants that TENANT, on paying the rent and performing the covenants shall peaceably and quietly have, hold and enjoy the Property. 14. LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the real property and has full authority to enter into and execute this Agreement. LESSOR further covenants that there are no other liens, judgments or impediments of title on the Property. 15. It is agreed and understood that this Agreement contains all agreements, promises and understandings between the LESSOR and TENANT and that no verbal or oral agreements, promises or understandings shall be binding upon either the LESSOR or TENANT in any dispute, controversy or proceeding at law, and any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the parties. 16. This Lease Agreement and the performance thereof shall be governed, interpreted, construed and regulated by the laws of the State of Florida. 17. This Agreement may not be sold, assigned or transferred at any time except to TENANT'S principal, affiliates or subsidiaries of its principal or to any company upon which TENANT is merged or consolidated. As to other parties, this Agreement may not be sold, assigned or transferred without the written consent of the LESSOR, such consent not to be unreasonably withheld. Notwithstanding the above, TENANT may permit other parties to co- locate and/or sublease on the Property, with no obligation to LESSOR, as long as this Agreement is in effect. 18. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested, addressed as follows (or any other address that the party to be notified may have designated to the sender by like notice) LESSOR: City of Sebastian 1225 Main Street Sebastian, FL 32958 Attn: City Manager TENANT: BellSouth Mobility 3-ee LG ~ ~~ 5201 Congress Avenue Boca Raton, Florida 33487 Attn: Network Real Estate Manager 6 19. This Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of the parties hereto. 20. At LESSOR'S option, this Agreement shall be subordinate to any mortgage by LESSOR which from time to time may encumber all or part of the Property or right of way, provided, however, every such mortgage shall recognize the validity of this Agreement in the event of a foreclosure of LESSOR'S interest and also TENANT'S right to remain in occupancy of and have access to the Property as long as TENANT is not in default of this Agreement. TENANT shall execute in a timely manner whatever instruments as may reasonably be required to evidence this subordination clause. In the event the leased Property is encumbered by a mortgage, the LESSOR, no later than thirty (30) days after this lease is exercised, shall have obtained and furnished to TENANT a non-disturbance instrument in recordable form for each such mortgage. 21. If the whole of the Property or such portion thereof as will make the Property unusable for the purposes herein leased, are condemned by any legally constituted authority for any public use or purpose, then in either of said events the term hereby granted shall cease from the time when possession thereof is taken by public authorities, and rental shall be accounted for as between LESSOR and TENANT as of that date. Any lesser condemnation shall in no way affect the' respective rights and obligations of LESSOR and TENANT hereunder. Nothing in this provision shall be construed to limit or affect TENANT'S right to an award of compensation of any eminent domain proceeding for the taking of TENANT'S leasehold interest hereunder. 22. LESSOR and TENANT agree that this Option and Lease Agreement will be forwarded for recording or filing in the appropriate office of the County of Indian River, and LESSOR and TENANT agree to take such actions as may be necessary to permit such recording or filing. TENANT, at TENANT'S option and expense, may obtain title insurance on the space leased herein. LESSOR, shall cooperate with TENANT'S efforts to obtain such title insurance policy by executing documents or, at TENANT'S expense, obtaining requested documentation as required by the .title insurance company. If title is found to be defective, LESSOR shall use diligent effort to cure the defects in title. In the event the Property is encumbered by a mortgage and the mortgage requires the consent of the Mortgagee to leases and/or improvements on the Property, Lessor shall provide TENANT with the prior written consent of the Mortgagee to this Option and Lease Agreement, as required under the terms of the mortgage. At TENANT'S option, should the LESSOR fail to provide requested documentation within thirty (30) days of TENANT'S request, or fail to provide the Non- Disturbance instrument(s) as noted in Paragraph 20 of this Agreement, TENANT may withhold and accrue the monthly rental until 7 such time as the requested document(s) is (are) received, or if title is found to be defective and LESSOR has failed to cure the defects within a reasonable period, TENANT may cancel this Agreement or cure the title defect at LESSOR's expense utilizing the withheld payments. 23. If TENANT defaults in fulfilling any of the covenants of this Agreement and such default shall continue for sixty (60) days after TENANT'S receipt of written notice from LESSOR specifying the nature of said default, or, if the said default so specified shall be of such a nature that the same cannot be reasonably cured or remedied within such .sixty (60) day period, if TENANT shall not in good faith commence the curing or remedying of such default within such sixty (60) day period and shall not thereafter diligently proceed therewith to completion, then in any one or more of such events this Agreement shall terminate and come to an end as fully and completely as if such were the day herein definitely fixed for the end and expiration of this Agreement and TENANT shall then quit and surrender the Property to LESSOR as provided herein. 24. If TENANT'S Communications Facility or improvements are damaged or destroyed by fire or other casualty, TENANT shall not be required to repair or replace the Communications Facility or any of TENANT'S improvements made by TENANT. TENANT shall not be required to expend for repairs more than twenty-five percent (25~) of the replacement value of the Communications Facility or any improvements. Additionally, if completion of the repairs is not possible within ninety (90) days following the date of the damage or destruction, TENANT may terminate this Agreement by giving written notice to LESSOR. Termination shall be effective immediately after such notice is given. Upon such termination, this Agreement shall become null and void and LESSOR and TENANT shall have no other further obligations to each other, other than TENANT'S obligation to remove its property as hereinafter provided. 25. In connection with any litigation arising out of this Agreement, the prevailing party, whether LESSOR or TENANT, shall be entitled to recover all reasonable costs incurred including reasonable attorney's fees for services rendered in connection with any enforcement of breach of contract, including appellate proceedings and post judgment proceedings. 26. In accordance with Florida Law, the following statement is hereby made: RADON GAS: Radon is a natural occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and 8 radon testing may be obtained from your county public health unit. 27. LESSOR shall hold TENANT harmless from and indemnify TENANT against and from any damage, loss, expenses or liability resulting from the discovery by any person of hazardous substance generated, stored, disposed of, or transported to or over Property, as long as such substance was not stored, disposed of, or transported to or over the Property by TENANT, its agents, contractors, employees, or invitees. TENANT will be responsible for any and all damages, losses, and expenses and will indemnify LESSOR against and from any discovery by any persons or such hazardous wastes generated, stored, or disposed of as a result of TENANT'S equipment and uses of the aforementioned Property. 28. This Agreement shall be executed in three (3) counterparts, each of which shall be deemed an original, and such counterparts shall constitute but one and the same Agreement. IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their respective seals. LESSOR ATTEST: alloran, CMC/AAE City Jerk THE CITY OF SEBASTIAN: Terr R. oore City Manager Approved as to Form and Legality for Reliance by the City of Sebastian only: l ~ Rich Stringer, City Attorney STATE OF FLORIDA COUNTY OF Th f regoing instrument was acknowledged be of 2000, by Terrance R O' loran, as City Manager and City Clerk, Ci y of Sebastian, a Florida municipal ersonally known to me o as identi ication and who did (did note ake/ Eore me this /S~z' day Moore and Kathryn M. respectively, of the corporation, whn ara an NOTARY PUBLIC (Sea1,J Print Name : f~.r~ l// /J su~12~u My Commission Expires ••~~ti ANN Y. RpUSSEAU . :. MY COMMfSSiCN M CC 125840 ' ~ lonAmXPtiwNs~nryPUeku',a~ o 10 TENANT Signed, sealed and delivered in the presence of: Witness: Print Name q. QoA - DAdiD Witness: ~ Print Name : ~,rl~ac Cvu~c: ! STATE OF ~p2GiA- COUNTY OF FU(.TO The fore oing instrt of ~`J~2vrI2P~Y BELLSOUTnHp,~MOBILITY ~#E LC 'C_ r LC~, /7S SOLE M~/ Y,4EL-. PrintName: tom( fte (cks Title: PrAs.d¢W~-, w~-Kop.~.:~"~S was acknowledged before me this 7~ day __ 2O0D, by QT. BELLSOUTH MOBILITY ~a ;o a-known to me or who has is produced who did (did not) take an o LGQ, BI/• Clr~rlra-CLLR, <ss so[E .~1~•r/d~e as identification and ' ~. NOTARY PUBLIC (Seal)_' Print Name : /Y/ELOLYE l4?• lyp~~ - M Commission Expir2s:D2~f~3 (~W iNNE'r'r Cpu~7y 11 EXHIBIT ~~A" 12 EXHIBIT "B " 13 Via 6 OPTION AND LEASE AGREEMENT This Agreement is made this day of , 2000, between CITY OF SEBASTIAN, a Florida icipal corporation, whose address is 1225 Main Street, Se astian, FL 32958, hereinafter designated LESSOR, and BELLSOUTH MOBILITY.:J., with offices at 5201 Congress Avenue, Boca Raton, Flo ' 334871 hereinafter designated TENANT. e'—LGd, ,81. bnw,udar zze, ,t5 sates 7lc RECITALS: LESSOR is the owner of certain real property located at 1201 Main Street, Sebastian, Indian River County, State of Florida, and TENANT desires to obtain an Option to lease a portion of said real property, containing approximately 2500 square feet, together with a twenty foot (201) wide right of way for access thereto (said leased parcel and right of way hereinafter called "Property"). The Property is more specifically described in and substantially shown outlined in red on Exhibit "A" attached hereto and made a part hereof. NOW, THEREFORE, in consideration of a sum of FIVE HUNDRED Dollars ($500.00), hereinafter referred to as "Option Money", to be paid by TENANT to the LESSOR, which TENANT will provide upon its execution of this Agreement, the LESSOR hereby grants to TENANT the right and Option to lease said portion of said real property, including a right of way for access thereto, for the term and in accordance with the covenants and conditions set forth herein. The Option may be exercised at any time within twelve (12) months from final execution of this Agreement by LESSOR. At TENANT's election, and upon TENANT's prior written notification to LESSOR, the time during which the Option may be exercised may be further extended for one (1) additional period of six (6) months, with an additional payment of ONE THOUSAND Dollars ($1,000.00) by TENANT to LESSOR for the Option Period so extended. The time during which the Option may be exercised may be further extended by mutual agreement in writing. If during said Option Period, or during the term of the lease, if the Option is exercised, the LESSOR decides - to subdivide, sell or change the I status of the Property or Lessor's property contiguous thereto, LESSOR shall immediately notify TENANT in writing so that TENANT can take steps necessary to protect TENANT's interest in the Property. LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute this Agreement. LESSOR further covenants that there are no other liens, judgments or impediments of title on the Property. This Option may not be sold, assigned or transferred at any time except, to TENANT's principal, affiliates or subsidiaries of its principal. As to other parties, this Option may not be sold, assigned or transferred without the written consent of the LESSOR, such consent not to be unreasonably withheld. Should TENANT fail to exercise this Option or any extension thereof within the time herein limited, all rights and privileges granted hereunder shall be deemed completely surrendered, this Option terminated, and LESSOR shall retain all money paid for the Option, and no additional money shall be payable by either party to the other. The LESSOR shall permit TENANT during the Option Period free ingress and egress to the Property to conduct such surveys, structural strength analysis, subsurface boring tests and other activities of similar nature, as TENANT may deem necessary, at the sole cost of TENANT. In addition, TENANT shall have the right to file any applications for certificates, permits and other approvals that may be required by any federal, state or local authorities. LESSOR agrees to cooperate with TENANT in its efforts to obtain such approvals and sign such papers as may be required to file applications with the appropriate authorities. Notice of the exercise of the Option shall be given by TENANT to the LESSOR, in writing by certified mail, return receipt requested. Notice shall be deemed effective on the date it is posted. On the date of such notice, the following Agreement shall take effect: LEASE AGREEMENT 1. LESSOR hereby leases to TENANT that certain parcel of real property, containing approximately 2500 square feet, situated at 1201 Main Street, Sebastian, Indian River County, State of Florida, together with the nonexclusive right for ingress and egress, seven (7) days a week, twenty-four (24) hours a day, on foot or motor vehicle, including trucks, and for the installation E and maintenance of utility wires, cables, conduits and pipes over, under or along a twenty foot (2 0 ' ) wide right of way extending from the nearest public right of way, namely Cross Street, to the leased parcel, said leased parcel and right of way for access being substantially as described herein in Exhibit "A" and as shown enclosed within red lines on Exhibit "A" attached hereto and made a part hereof. Said leased parcel and right of way for access shall be hereinafter referred to as "Property". LESSOR shall cooperate with TENANT in TENANT's effort to obtain utility services along said right of way by signing such documents or easements as may be required by said utility companies. In the event any public utility is unable to use the aforementioned right of way, the LESSOR hereby agrees to grant an alternative right of way or utility easement either to the TENANT or to the public utility at no cost to the TENANT. 2. LESSOR also hereby grants to TENANT the right to survey said Property, and the legal description on said survey shall then become Exhibit "B", which shall be attached hereto and made a part hereof, and shall control in the event of discrepancies between it and Exhibit "A". LESSOR grants TENANT the right to take measurements, make calculations, and to note other structures, setbacks, uses, or other information as deemed by TENANT to be relevant and pertinent, as such information relates to LESSOR's real property, leased or otherwise abutting or surrounding the Property. Cost for such survey work shall be borne by the TENANT. 3. This Agreement shall be for an initial term of five ( 5 ) years beginning on the date the Option is exercised by TENANT at an annual rental of Eighteen Thousand Dollars ($18,000L, plus applicable taxes, to be paid in equal monthly installments on the first day of the month, in advance to City of Sebastian or to such other person, firm or place as the LESSOR may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date. 4. TENANT shall have the option to extend this lease for four (4) additional five (5) year terms, and such extensions shall automatically occur unless TENANT gives LESSOR written notice of its intention not to extend this Lease Agreement at least six (6) months prior to the end of the current term. 5. extension extension extension year The annual rental for the first (1st) five term shall be increased _ Dollars ( ) ; the second ( 2nd) five ( 5 ) term shall be increased Dollars ( ) ; the third ( 3rd) five ( 5 ) term shall be increased Dollars ( ) ; and the fourth (4th) five extension term shall be increased Dollars 3 year to year to year t0 e (3) to 6. If at the end of the fourth (4th) five (5) year extension term this Agreement has not been terminated by either party by giving to the other written notice of an intention to terminate it at least six (6) months prior to the end of such term, this Agreement shall continue in force upon the same covenants, terms and conditions for a further term of one (1) year, and for annual terms thereafter until terminated by either party by giving to the other written notice of its intention to so terminate at least six (6) months prior to the end of such term. Monthly rental for this period shall be equal to the rent paid for the last month of the fourth (4th) five (5) year extension term. 7. TENANT shall use the Property for the purpose of constructing, maintaining and operating a Communications Facility and uses incidental thereto, consisting of a building or buildings as necessary now or in the future to shelter telecommunications equipment and related office space, a free standing monopole or three sided antenna structure of sufficient height now or in the future to meet TENANT's telecommunication needs and all necessary connecting appurtenances. TENANT may at its discretion modify its antenna structure or building(s). A security fence consisting of chain link construction or similar but comparable construction may at the option of TENANT be placed around the perimeter of the Property (not including the access easement). All improvements shall be at TENANT's expense. LESSOR grants TENANT the right to use adjoining and adjacent land as is reasonably required during construction, installation, maintenance, and operation of the Communications Facility. TENANT will maintain the Property in a reasonable condition. It is understood and agreed that TENANT's ability to use the Property is contingent upon its obtaining after the execution date of this Agreement, all of the certificates, permits and other approvals that may be required by any federal, state or local authorities. LESSOR shall cooperate with TENANT in its effort to obtain such approvals, including dedicating right of way or other customary extractions, and shall take no action which would adversely affect the status of the Property with respect to the proposed use thereof by TENANT. LESSOR agrees to sign such papers as are customarily and reasonably required to file applications with the appropriate zoning authority and/or commission for the proper zoning of the Property as required for the use intended by the TENANT. TENANT will perform all other acts and bear expenses associated with the rezoning procedure. LESSOR agrees not to register any written or verbal opposition to the rezoning procedures. Notwithstanding any other termination rights available to TENANT under this Agreement, TENANT, at its sole and absolute discretion, shall have the right to terminate this Agreement with ninety (90) days prior written notice to LESSOR and a lump sum payment to LESSOR in an amount equal to six months rental at the rate in effect at the time of termination. Notice of the TENANT's exercise of its right to terminate shall be given to V LESSOR in writing by certified mail, return receipt requested, and shall be effective upon receipt of such notice by the LESSOR as evidenced by the return receipt. All rentals paid to said termination date shall be retained by the LESSOR. Upon such termination, this Agreement shall become null and void and all the parties shall have no further obligations, including the payment of money, to each other. 8. TENANT shall indemnify and hold LESSOR harmless against any claims of liability or loss from personal injury or property damage resulting from or arising out of the use and occupancy of the Property by the TENANT, its servants or agents, excepting, however, such claims or damages as may be due to or caused by the acts of the LESSOR, or its servants or agents. 9. LESSOR agrees that TENANT may self -insure against any loss or damage which could be covered by a commercial general public liability insurance policy. 10. TENANT shall be responsible for making any necessary returns for and paying any and all property taxes separately levied or assessed against its improvements on the Property. TENANT shall reimburse LESSOR as additional rent for any increase in real estate taxes levied against the Property which are directly attributable to the improvements constructed by TENANT and are not separately levied or assessed against TENANT's improvements by the taxing authorities. 11. TENANT upon termination of this Agreement, shall, within a reasonable period, remove its personal property and fixtures and restore the Property to its original above grade condition, reasonable wear and tear excepted. At LESSOR's option when this Agreement is terminated and upon LESSOR's advance written notice to TENANT, TENANT will leave the foundation and security fence to become property of LESSOR. If such time for removal causes TENANT to remain on the Property after termination of this Agreement, TENANT shall pay rent at the then existing monthly rate or on the existing monthly pro -rata basis if based upon a longer payment term, until such time as the removal of personal property and fixtures are completed. 12. Should the LESSOR, at any time during the term of this Agreement, decide to sell all or any part of his real property which includes the parcel of property leased by TENANT herein and/or the right of way thereto to a purchaser other than TENANT, such sale shall be under and subject to this Agreement and TENANT's rights hereunder. LESSOR agrees not to sell, lease or use any other areas of the larger parcel upon which the Property is situated for the placement of other communications facilities if, in TENANT's sole judgment, such installation would interfere with 5 the facilities in use by TENANT. 13. LESSOR covenants that TENANT, on paying the rent and performing the covenants shall peaceably and quietly have, hold and enjoy the Property. 14. LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the real property and has full authority to enter into and execute this Agreement. LESSOR further covenants that there are no other liens, judgments or impediments of title on the Property. 15. It is agreed and understood that this Agreement -contains all agreements, promises and understandings between the LESSOR and TENANT and that no verbal or oral agreements, promises or understandings shall be binding upon either the LESSOR or TENANT in any dispute, controversy or proceeding at law, and any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the parties. 16. This Lease Agreement and the performance thereof shall be governed, interpreted, construed and regulated by the laws of the State of Florida. 17. This Agreement may not be sold, assigned or transferred at any time except to 'TENANT's principal, affiliates or subsidiaries of its principal or to any company upon which TENANT is merged or consolidated. As to other parties, this Agreement may not be sold, assigned or transferred without the written consent of the LESSOR, such consent not to be unreasonably withheld. Notwithstanding the above, TENANT may permit other parties to co - locate and/or sublease on the Property, with no obligation to LESSOR, as long as this Agreement is in effect. 18. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested, addressed as follows (or any other address that the party to be notified may have designated to the sender by like notice) : LESSOR: City of Sebastian 1225 Main Street Sebastian, FL 32958 Attn: City Manager TENANT: BellSouth Mobility 4 -Re GLd- IC47� 5201 Congress Avenue Boca Raton, Florida 33487 Attn: Network Real Estate Manager N. 19. This Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of the parties hereto. 20. At LESSOR's option, this Agreement shall be subordinate to any mortgage by LESSOR which from time to time may encumber all or part of the Property or right of way, provided, however, every such mortgage shall recognize the validity of this Agreement in the event of a foreclosure of LESSOR's interest and also TENANT's right to remain in occupancy of and have access to the Property as long as TENANT is not in default of this Agreement. TENANT shall execute in a timely manner whatever instruments as may reasonably be required to evidence this subordination clause. In the event the leased Property is encumbered by a mortgage, the LESSOR, no later than thirty (30) days after this lease is exercised, shall have obtained and furnished to TENANT a non -disturbance instrument in recordable form for each such mortgage. 21. If the whole of the Property or such portion thereof as will make the Property unusable for the purposes herein leased, are condemned by any legally constituted authority for any public use or purpose, then in either of said events the term hereby granted shall cease from the time when possession thereof is taken by public authorities, and rental shall be accounted for as between LESSOR and TENANT as of that date. Any lesser condemnation shall in no way affect the- respective rights and obligations of LESSOR and TENANT hereunder. Nothing in this provision shall be construed to limit or affect TENANT's right to an award of compensation of any eminent domain proceeding for the taking of TENANT's leasehold interest hereunder. 22. LESSOR and TENANT agree that this Option and Lease Agreement will be forwarded for recording or filing in the appropriate office of the County of Indian River, and LESSOR and TENANT agree to take such actions as may be necessary to permit such recording or filing. TENANT, at TENANT's option and expense, may obtain title insurance on the space leased herein. LESSOR, shall cooperate with TENANT's efforts to obtain such title insurance policy by executing documents or, at TENANT's expense, obtaining requested documentation as required by the title insurance company. If title is found to be defective, LESSOR shall use diligent effort to cure the defects in title. In the event the Property is encumbered by a mortgage and the mortgage requires the consent of the Mortgagee to leases and/or improvements on the Property, Lessor shall provide TENANT with the prior written consent of the Mortgagee to this Option and Lease Agreement, as required under the terms of the mortgage. At TENANT's option, should the LESSOR fail to provide requested documentation within thirty (30) days of TENANT's request, or fail to provide the Non - Disturbance instrument(s) as noted in Paragraph 20 of this Agreement, TENANT may withhold and accrue the monthly rental until 7 such time as the requested document (s) is ( are) received, or if title is found to be defective and LESSOR has failed to cure the defects within a reasonable period, TENANT may cancel this Agreement or cure the title defect at LESSOR's expense utilizing the withheld payments. 23. If TENANT defaults in fulfilling any of the covenants of this Agreement and such default shall continue for sixty (60) days after TENANT's receipt of written notice from LESSOR specifying the nature of said default, or, if the said default so specified shall be of such a nature that the same cannot be reasonably cured or remedied within such sixty (60) day period, if TENANT shall not in good faith commence the curing or remedying of such default within such sixty (60) day period and shall not thereafter diligently proceed therewith to completion, then in any one or more of such events this Agreement shall terminate and come to an end as fully and completely as if such were the day herein definitely fixed for the end and expiration of this Agreement and TENANT shall then quit and surrender the Property to LESSOR as provided herein. 24. If TENANT's Communications Facility or improvements are damaged or destroyed by fire or other casualty, TENANT shall not be required to repair or replace the Communications Facility or any of TENANT's improvements made by TENANT. TENANT shall not be required to expend for repairs more than twenty-five percent (25%) of the replacement value of the Communications Facility or any improvements. Additionally, if completion of the repairs is not possible within ninety (90) days following the date of the damage or destruction, TENANT may terminate this Agreement by giving written notice to LESSOR. Termination shall be effective immediately after such notice is given. Upon such termination, this Agreement shall become null and void and LESSOR and TENANT shall have no other further obligations to each other, other than TENANT's obligation to remove its property as hereinafter provided. 25. In connection with any litigation arising out of this Agreement, the prevailing party, whether LESSOR or TENANT, shall be entitled to recover all reasonable costs incurred including reasonable attorney's fees for services rendered in connection with any enforcement of breach of contract, including appellate proceedings and post judgment proceedings. 26. In accordance with Florida Law, the following statement is hereby made: RADON GAS: Radon is a natural occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are - exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 27. LESSOR shall hold TENANT harmless from and indemnify TENANT against and from any damage, loss, expenses or liability resulting from the discovery by any person of hazardous substance generated, stored, disposed of, or transported to or over Property, as long as such substance was not stored, disposed of, or transported to or over the Property by TENANT, its agents, contractors, employees, or invitees. TENANT will be responsible for any and all damages, losses, and expenses and will indemnify LESSOR against and from any discovery by any persons or such hazardous wastes generated, stored, or disposed of as a result of TENANT's equipment and uses of the aforementioned Property. 28. This Agreement shall be executed in three (3) counterparts, each of which shall be deemed an original, and such counterparts shall constitute but one and the same Agreement. IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their respective seals. LESSOR ATTEST: . O Halloran, CMC/AAE City Jerk THE CITY OF SEBASTIAN: Approved as to Form and Legality for Reliance by the City of Sebastian only: Rich Stringer, City Attorney STATE OF FLORIDA COUNTY OF Terretee' R. Moore City Manager Th f regoing instrument was acknowledged before me this /� day of 2000, by Terrance R. Moore and Kathryn M. O' loran,' as City Manager and City Clerk, respectively, of the Ci y of Sebastian, a Florida municipal corporation, wba are _personally known to me or whe} as iden i icatson and who did (did /t'ake/ an oath. 1 NOTARY PUBLIC ( Sea , Print Name: My Commission Expires ANN V. ROUSSEAU Al '� MY COMIt�I5SI0N # CC 725840 EXPIRES: March 18, 2002 @onded tnro Notary Putlhc Ursdenvriters 10 TENANT Signed, sealed and delivered in the presence of: 4 Witness: Print Name Witness: a��l j A I -O-zh",,4 NJ Print Name : dent C�,u,,,c. STATE OF 60461Pr- COUNTY OF PyurorJ BELLSOUTH MOBILITY -1-W LLC' 1/.• (� Jula� Lam, /Ts s4LE /r/F.,h1BE.� Y� PrintName : 4-w>lds Title: �,-zs�d�wk,-K oP�►`�"� The fore oing instrument was acknowledged before me this 7t4'.', day of VVa4lAi2,X , 2000, by am e - S �.,� ,�rLS; Q ` BELLS OUTH MOB I L I TY Y ,- who is ersohall known to me or who has P produced as identification and who did (did not) take an oath. 444, A V' Cl'r�r�i4trLLC�� �y5 SDLE /�l�/�B� , A-�� NOTARY PUBLIC (Seal) Print Name: 177&0016 /n - #0,0 M Commission Expires: D2,1�/7,03 aw iNNErY C%"f4?y 11 o EXHIBIT "A" 12 EXHIBIT "B " To be- a $ached. 13 Addendum to Option d Lease Agreement Dated 1 2000 by an between CITYgtBAST asITY s LESSOR, and BELLSOUTH MOBILITY P4&, as TENANT 1. Insert as the next to last paragraph in the Option Language the following: Further, during the Option Period TENANT shall be allowed to maintain the existing temporary facility located on the 1201 Main Street site. The monthly rent for the temporary facility during the first six months of the Option Period shall be One Thousand Dollars ($1,000.00), which shall increase for the seventh and any subsequent month to the monthly amount of One Thousand Five Hundred Dollars ($1,500.00). In the event the Option terminates without exercise of the same, the temporary facilities shall be removed by TENANT and the site restored within ninety (90) days. Rent shall continue to be due until such removal and restoration is completed. 2. In paragraph 3 of the lease, insert before "plus applicable taxes..." the following "to be adjusted annually as set forth below," 3. Paragraph 5 shall be replaced with the following: On the anniversary date of the exercise of the Option, the annual rental shall be adjusted upwards four percent over the amount for the prior year. 4. Delete the last sentence in paragraph 6 and add the following sentence: The rental amount for each such one year extension shall continue to be subject to the rent adjustment set forth in paragraph 5, above. 5. In the first sentence in paragraph 7 after ...structure of efficient height add: Up to 175 feet 6. In the second sentence of paragraph 7 after "TENANT may at its discretion modify it's antenna structure or building..." add: However, the antenna shall at all times be covered with an antenna canister or other concealing device agreeable to LESSOR. 7. In paragraph 11 delete the first 2 sentences and replace it with the following: Tenant upon termination of this Agreement shall, subject to Lessor's Retention Option (defined below), within a reasonable period, remove its personal property and fixtures and restore the Property to its original above grade condition, reasonable wear and tear excepted. At Lessor's option when this is Agreement is terminated and upon Lessor's advance written notice to Tenant (the "Lessor's Retention Option"), Tenant will leave i) the telecommunications tower structure, the foundation and security fence or (ii) the foundation and security fence; provided, however, that if the termination occurs during the first ten (10) years of the lease term, Lessor shall pay to Tenant within ten (10) days after demand, the then fair market value of the tower as reasonable estimated by Tenant. If Lessor shall fail to timely make such payment, then Tenant shall have the right to remove the telecommunications tower structure. Any conveyance of the telecommunications tower structure to the Lessor shall be in "as is, where is, with all faults" condition and shall be by quitclaim bill of sale. 8. In paragraph 12 last sentence delete "sole" and add "TENANTS reasonable judgment." 9. At the end of paragraph 16 add: And venue for any action related hereto shall lie exclusively in Indian River County, Florida. 10. The last sentence in paragraph 17 should be changed to read as follows: Notwithstanding the above, TENANT may permit other parties to co -locate and/or sublease antenna space on the Property with no obligation to LESSOR, provided no use of ground structures is required, as long as this agreement is in effect. 11. In paragraph 24 remove the last line of the paragraph after the comma and add the following: Other than TENANT's obligation to remove its property and pay rent during the pendency of said removal as provided in paragraph 11, above. This Addendum is attached to the Agreement, dated as os even date therewith and made a part thereof. The parties have signified agreement to this Addendum by initialing it as follows: Initials as to LESSOR: Initials as to TENANT: FIRST AMENDMENT TO OPTION AND LEASE AGREEMENT THIS FIRST AMENDMENT TO OPTION A D LEASE AGREEMENT ("Amendment") is made this —� day of 1)�P ri1 2000, by BELLSOUTH MOBILITY INEa Georgia.serretatiea (`BellSouth") and the CITY OF SEBASTIAN ("Landlord"). «c" WITNESSETH: THAT WHEREAS, Landlord and BellSouth are parties to that certain Option and Lease Agreement dated as of June 15, 2000 (the "Lease"), the terms of which are incorporated herein by reference, whereby BellSouth leased certain real property located in Indian River County, State of Florida, as such property is more particularly described in the Lease (the "Leased Premises"); and WHEREAS, the parties wish to modify certain terms and conditions of the Lease as provided herein. NOW THEREFORE, for the mutual covenants and premises herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged, the undersigned parties, intending to be bound, hereby agree as follows: 1. Addendum. Paragraph 10 of the Addendum is hereby deleted. Paragraph 17 of the Lease is hereby ratified and affirmed. Landlord has been advised that BellSouth has sublet a portion of the Leased Premises to Crown Castle International, Inc. or an affiliate thereof ("Crown"). As used hereinafter "Crown" shall also mean any successor to Crown Castle International, Inc., or any additional, subsequent sublessee of BellSouth. 2. One -Time Fee. As consideration for Landlord's willingness to delete Paragraph 10 of the Addendum, as provided herein, BellSouth agrees to make a one-time payment to Landlord of Twenty Five Thousand and No/100 Dollars ($25,000.00) (the "Fee"). Such Fee shall be payable to Landlord within thirty (30) days O after which BellSouth commences material physical alteration of the Leased Premises for the purpose of constructing the wireless communications facility. If BellSouth terminates this Lease prior to such commencement of construction then the Fee shall not be payable. 3. Revefiue Sharing. As further consideration for Landlord's willingness to delete Paragraph 10 of the Addendum relating to the use of ground structures with respect to the co -locating and/or subleasing of antenna space on the Leased Premises, BellSouth agrees to pay Landlord twenty-five percent (25%) of all base rent actually received by Crown, from any subtenants, licensees or sublicensees of Crown locating telecommunications equipment on the tower at the Leased Premises. Any additional amounts payable to Landlord will be determined by Crown within thirty (30) days after any new tenant shall have been installed on the tower, and Crown will promptly notify BellSouth and Landlord in writing of the amount of additional rent due VERO G MI1:\91 687M2\I YQV02I.MaI9632.0005 under the Lease for such tenant. In the event Landlord disputes the amount of additional rent due as calculated by Crown, Landlord must notify BellSouth and Crown in writing that it is disputing the amount due within thirty (30) days after it receives Crown's notice or such claim shall be waived. BellSouth will begin paying the amount of additional rent payable to Landlord for any new sublease within thirty (30) days after it receives notice from Crown of the amount of additional rent due (retroactive to the date upon which the tenant began paying rent under its sublease with Crown). Notwithstanding the foregoing, Landlord agrees that it will not be entitled to share in or receive any portion of (a) any sublease payment or other consideration paid by Crown to BellSouth in connection with any subleasing or sublicensing of the Leased Premises, so long as Crown is not locating telecommunications equipment on the tower at the Leased Premises, or (b) any payment or other consideration paid by BellSouth to Crown with respect to the Leased Premises. The foregoing shall supersede and replace any existing right of Landlord (if any) to receive additional rent or other consideration under the Lease (in the nature of revenue sharing or otherwise) as a result of any subleasing, sublicensing or other co - location of tenants on the Leased Premises by BellSouth or Crown. 4. No Other Amendments. Except as expressly modified by this Amendment, the Lease remains unchanged and in full force and effect. IN WITNESS WHEREOF, the undersigned have executed this Amendment the day and year first above written. Signed, sealed and delivered in the presence of: Print Name: P.L/&Ac& - Print Name: AftO416 /45:00 - Print e: �rne�yq� ;.Tint Nam Sally A. Maio City Clerk M11 A91687102U YQV02!.DOC\39632.0005 BELLSOUTH: BELLSOUTH MOBILITY -FN B O 1cer's Name: S. fi, 5A.4 Title: ,'feet o LANDLORD: Y EBASTI N is Nam TEMr �R _ �� Title: City Manager @ BEELLSOUTH Mobility BellSouth Mobility 561995-3000 5201 Congress Avenue Boca Baton, Florida 33487 FEDERAL EXPRESS March 24, 2000 Mr. Paul Wagner Purchasing and Contract Administrator/Assistant to City Manager City of Sebastian 1225 Main Street Sebastian, FL 32958 (561) 589-5330 RE: BellSouth Mobility Temporary Communication Facility City of Sebastian — Site VEROS (T) Dear W. Wagner: BellSouth Mobility, Inc., would like to extend the Agreement for a Temporary Communication Facility, located at the Sebastian Police Department. The extension will commence on April 1, 2000 and be in effect until either the Option/Lease Agreement for the permanent facility is executed and the facility is 100% constructed and operational (on the air transmitting) or until November 31, 2000; whichever comes first. The City of Sebastian will receive $1,000.00 a month plus applicable sales tax for the temporary site. If this meets your approval, please indicate your concurrence by signing below, faxing a signed copy to me at (561) 995-3594, and returning one original to my attention at the above address. If you should have any questions or comments, you may contact me at (561) 995-3733. Sincerely, W -&i 4w,:5 Debbie Lewis Real Estate & Construction Administrator Real Estate & Construction Network - State of Florida Sia�ttliie repr4seliis 7bur concurrence with the above. TS 2 Lld 32 Ddu 00, ® BELLSOUTH BellSouth Cellular Corp. " ' IL 'r ' A 11100 nta, GAt303 Sree treet, N.E. '00 APR 23 Aft 9 4 i P" April 18, 2000 rilf, � Mr. Paul Wagner Purchasing and Contract Administrator/ Assistant to City Manager City of Sebastian 1225 Main Street Sebastian, FL 32958 Re: BellSouth Mobility Temporary Site: VER05(T) Dear Mr. Wagner: In accordance with the letter agreement dated March 24, 2000, the City of Sebastian is to receive rent for the above -referenced site at a new rate of $1,000.00 per month effective April 1, 2000. As the regular April payment of $700.00 has already been issued, I have processed the increase in the amount of $300.00, and you should receive it shortly. Your May payment and forward will be in the amount of $1,070.00, consisting of base rent of $1,000.00, plus 7% sales tax of $70.00. If you have any questions concerning the increase, please call me on our toll-free number, 877-231-5447. Sincerely, C—/ Diana Burton Real Estate Specialist /db cc: BMI Project Manager City of Sebastian 1225 MAIN STREET o SEBASTIAN, FLORIDA 32958 TELEPHONE (561) 589-5330 o FAX (561) 589-5570 October 26, 2000 Mr. Dave Herring Site Concepts, Inc. 1201 U.S. Highway #1 North Palm Beach, FL 33408 Dear Mr. Herring: Enclosed please for your signature, please find four (4) original copies of First Amendment to Option and Lease Agreement between the City of Sebastian and Bellsouth Mobility, Inc. Once you have fully executed the Agreements, please return one original copy. If you should need any additional information, please feel free to contact me. Sincerely, Jean M. Tarbell Executive Assistant Enclosure "An Equal Opportunity Employeru Celebrating Our 75th Anniversary WHITE HOUSE MILLENNIUM GUNCII Nora the Pass - lmagb she fmre FIRST AMENDMENT TO OPTION AND LEASE AGREEMENT THIS FIRST AMENDMENT TO OPTION AND LEASE AGREEMENT ("Amendment") is made this day of , 20002 by BELLSOUTH MOBILITY INC, a Georgia corporation ("BellSouth") and the CITY OF SEBASTIAN ("Landlord"). WITNESSETH: THAT WHEREAS, Landlord and BellSouth are parties to that certain Option and Lease Agreement dated as of June 15, 2000 (the "Lease"), the terms of which are incorporated herein by reference, whereby BellSouth leased certain real property located in Indian River County, State of Florida,. as such property is more particularly described in the Lease (the "Leased Premises"); and WHEREAS, the parties wish to modify certain terms and conditions of the Lease as provided herein. . . NOW THEREFORE, for the mutual covenants and premises herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged, the undersigned parties, intending to be bound, hereby agree as follows: 1. Addendum. Paragraph 10 of the Addendum is hereby deleted. Paragraph 17 of the Lease is hereby ratified and affirmed. Landlord has been advised that BellSouth has sublet a portion of the Leased Premises to Crown Castle International, Inc. -or an affiliate thereof ("Crown"). As used hereinafter "Crown" shall also mean any successor to Crown Castle International, Inc., or any additional, subsequent sublessee of BellSouth.. 2. One -Time Fee. As consideration for Landlord's willingness to delete Paragraph 10 of the Addendum, as provided herein, BellSouth agrees to make a one-time payment to Landlord of Twenty Five Thousand and No/100 Dollars. ($25,000.00) (the "Fee"). Such Fee shall be payable to Landlord within thirty (30) days after which BellSouth commences material physical alteration of the Leased Premises for the purpose of constructing the wireless communications facility. If BellSouth terminates this Lease prior to such commencement of construction then the Fee shall not be payable. 3. Revenue Sharing. As further consideration for Landlord's willingness to delete Paragraph 10 of the Addendum relating to the use of ground structures with respect to the co -locating and/or subleasing of antenna space on the Leased Premises, BellSouth agrees to pay Landlord twenty-five percent (25%) of all base rent actually received by Crown, from any subtenants, licensees or sublicensees of Crown locating telecommunications equipment on the tower at the Leased Premises. Any' additional amounts payable to Landlord will be determined by Crown within thirty (3 0) days after any new tenant shall have been installed on the tower, and Crown will promptly notify BellSouth and Landlord in writing of the amount of additional rent due VERO 6 Ml I :19168710211 YQV02I.DOC%39632.0005 under the Lease for such tenant. In the event Landlord disputes the amount of additional rent due as calculated by Crown, Landlord must notify BellSouth and Crown in writing that it is disputing the amount due within thirty (30) days after it receives Crown's notice or such claim shall be waived. BellSouth will begin paying the amount of additional rent payable to Landlord for any new sublease within thirty (30) days after it receives notice from Crown of the amount of additional rent due (retroactive to the date upon which the tenant began paying rent under its sublease with Crown). Notwithstanding the foregoing, Landlord agrees that it will not be entitled to share in or receive any portion of (a) any sublease payment or other consideration paid by Crown to BellSouth in connection with any subleasing or sublicensing of the Leased Premises, so long as Crown is not locating telecommunications equipment on the tower at the Leased Premises, or (b) any payment or other consideration paid by BellSouth to Crown with respect to the Leased Premises. The foregoing shall supersede and replace any existing right of Landlord (if any) to receive additional rent or other consideration under the Lease (in the nature of revenue sharing or otherwise) as a result of any subleasing, sublicensing or other co - location of tenants on the Leased Premises by BellSouth or Crown. 4. No Other Amendments. Except as expressly modified by this Amendment, the Lease remains unchanged and in full force and effect. IN WITNESS WHEREOF, the undersigned have executed this Amendment the day and year first above written. Signed, sealed and delivered in the presence. of.- Print f: Print Name: Print Name: -< - -P-�, Print Name: A. Caty M :r, M11.1916891Q211 YQV02!.DOC139632.0005 2 BELLSOUTH: BELLSOUTH MOBILITY INC, a Georgia corporation By: Officer's Name: Title: LANDLORD: o EBAs., y: s Name R. Moore Title: City Mmiager City of Sebastian 1225 MAIN STREET 0 SEBASTIAN, FLORIDA 32958 TELEPHONE (561) 589-5330 o FAX (561) 589-5570 June 14, 2000 Ms. Debbie Lewis Real Estate Administrator Bellsouth Mobility 5201 Congress Avenue Boca Raton, FL 33487 Dear Ms. Lewis: Re: Entry Testing Agreement for proposed cell site "VER06" OFY Enclosed please find one (1) signed original of Entry and Testing Agreement between the City of Sebastian and Bellsouth Mobility, Inc., for the proposed cell site "VER06". We have retained one (1) fully executed agreement for our file. If we can be of any further assistance, please feel free to contact me. Sincerely, Jean M. Tarbell Executive Assistant Enclosure WHTE NOOSE "An Equal OpportunityEmployer"MILLENNIUM COUNCIL OL Celebrating Our 75th Anniversary HaverN pm. irwgme the turn VER06 ENTRY AND TESTING AGREEMENT This Entry and Testing Agreement ("Agreement") is made as of the =day of 2000, between BELLSOUTH MOBILITY INC ("BellSouth") and The Seb stian Police Station ("Owner"), concerning the following described property: 1201 Main Street, Sebastian, FL 32958 Owner currently owns the Property. BellSouth and Entrant are considering the negotiation of an agreement whereby BellSouth will lease, sublease or license certain portions of the Property. In order for BellSouth to determine the viability and feasibility of the Property as a tower or antenna site, BellSouth desires to enter upon and inspect the Property and/or to locate temporarily communications equipment on the Property to conduct short term radio propagation tests; and As an accommodation to BellSouth, Owner is willing to grant permission to BellSouth, its employees, agents or contractors to enter upon the Property solely to conduct such investigations, under the terms and conditions stated herein. In consideration of the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Owner grants to BellSouth, its contractors, agents, employees and assigns a right of entry and license to enter upon the Property solely to conduct and perform radio propagation tests (the "Permitted Activities"). The Permitted Activities are understood to mean the vertical placement of a radio transmitter by crane, or, in the instance where there is an existing tower or building on the Property, on such tower or building, at the height required for potential permanent antenna, placement. BellSouth's entry rights are specifically limited to the Permitted Activities and to the Property and shall not include any other activities, on the Property or any other portion of the property surrounding the Property. BellSouth shall be responsible for any and all costs related to the Permitted Activities, including any temporary installation, operation and removal of equipment on the Property. 2. BellSouth agrees to comply with all local, state and federal laws, rules and ordinances applicable to the Permitted Activities. BellSouth further agrees to exercise due care in the performance of all Permitted Activities on the Property, and not to interfere with Owner's or any other party's activities on the Property. BellSouth shall promptly repair, at its cost, any damage to Property, or any other property caused by the acts or omissions of BellSouth, its agents, employees, contractors or subcontractors. 3. BellSouth shall indemnify and hold harmless Owner, its employees, agents or contractors, from all claims, actions, damages, liability and expense, including VER06 without limitation attorney's fees and costs, in connection with personal injury or property damage arising out of the acts or omissions of BellSouth, its employees, agents or contractors, including without limitation the Permitted Activities, upon the Property, or any other portion of the property surrounding the Property. This indemnification shall survive the expiration or termination of the Agreement. 4. BellSouth shall maintain, and shall have it contractors and subcontractors maintain, adequate insurance coverage. 5. The term of this Agreement shall be from the Execution Date to a date forty-five (45) days from the Execution Date. 6. This Agreement constitutes the entire understanding between the parties with respect to the activities contemplated by this Agreement. All prior agreements or understandings, whether oral or written, are superseded. This Agreement may be amended only by a written document duly executed by the parties. This Agreement is governed by the laws of the State wherein the Property is located. IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals as of the date first above written. BELLSOUTH MOBILITY INC 0 By: _ Name: Title: _ Date: OWNER aye Name: Title: G '� Date:5' © D St. ?-' b V� 3 City of Sebastian 1225 MAIN STREET 13 SEBASTIAN, FLORIDA 32958 TELEPHONE (561) 589-5330 0 FAX (561) 589-5570 June 14, 2000 Mr. Dave Herring Bellsouth Mobility 1201 U.S. Highway #1, Suite 230 North Palm Beach, FL 33408 Dear Mr. Herring: Re: Option and Lease Agreement Enclosed please find three (3) signed original copies of Option and Lease Agreements between the City of Sebastian and Bellsouth Mobility, Inc., for the purpose of constructing, maintaining and operating a Communications Facility. Once you have fully executed the Option and Lease Agreements, please return one original copy. If we can be of any further assistance, please advise. Sincerely, —? Jean M. Tarbell Executive Assistant Enclosure z;600 WHITE HOUSE An Equal Opportuniiy Employer' MILLENNIUM COUNOL Celebrating Our 75th Anniversary Honor the Pool - m g a the Fumn COPY OPTION AND LEASE AGREEMENT This Agreement is made this 165 X day of , 2000, between CITY OF SEBASTIAN, a Florida m icipal corporation, whose address is 1225 Main Street, Seb stian, FL 32958, hereinafter designated LESSOR, and BELLSOUTH MOBILITY INC, with offices at 5201 Congress Avenue, Boca Raton, 'Florida 33487, hereinafter designated TENANT. RECITALS: LESSOR is -the owner of certain real property located at 1201 Main Street, Sebastian, Indian River .County,. State of Florida, and TENANT desires to obtain an Option to lease a portion of 'said real property, containing approximately 2500 square feet, together with a twenty foot (2 0 ' ) wide right of way for access thereto (said leased parcel and right of way hereinafter called "Property"). The Property is more specifically described in and. substantially shown outlined in red on Exhibit "A" attached hereto and made a part hereof. NOW, THEREFORE, in consideration of a sum of FIVE HUNDRED Dollars ($500.00), hereinafter referred to as "Option Money", to be paid by TENANT to the LESSOR, which TENANT will provide upon its execution of this Agreement, the LESSOR hereby grants to TENANT the right and Option to lease said portion of said real property, including a right of way for access thereto, for the term and in accordance with the covenants and conditions set forth herein. The Option may be exercised at any time within twelve (12-) months from final execution of this Agreement by LESSOR. At TENANT's election, and upon TENANT's prior written notification to LESSOR, the time during which the Option may be exercised may be further extended for one (1) additional period of six ( 6 ) months., with an additional payment of ONE THOUSAND Dollars ,51, 000.00) by TENANT to LESSOR for the 'Option Period so extended. The time during which the Option may be exercised may be further extended by mutual agreement in writing._ If during said Option Period, or during the term of the lease, if the Option is exercised, the LESSOR decides .to subdivide, sell. or change the 1 status of the Property or Lessor's property contiguous thereto.. LESSOR shall immediately notify TENANT in writing so that- TENANT can take steps necessary to protect TENANT's interest in the Property. LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute this Agreement. LESSOR further covenants that there are no other liens, judgments or impediments of title on the Property. This Option may not be sold, assigned or transferred at any time except, to TENANT's principal, affiliates or subsidiaries of its principal. As to other parties, this Option may not be sold, assigned or transferred without the written consent of the LESSOR, such consent not to be unreasonably withheld. Should TENANT fail to exercise this Option or any extension thereof within the time herein limited, all rights and privileges granted hereunder shall be deemed completely surrendered, this Option terminated, and LESSOR shall retain all money paid for the Option, and no additional money shall be payable by either party to the other. The LESSOR shall permit TENANT during the -Option Period free ingress and egress to the Property to conduct such surveys, structural strength analysis, subsurface boring tests and other activities of similar nature, as TENANT may deem necessary, at the sole cost of TENANT. In. addition, TENANT shall have the right to file any applications for certificates, permits and other approvals that may be -required by any federal, state or local authorities. LESSOR agrees to cooperate with TENANT in its efforts to obtain such approvals and sign such papers as may be required to file applications with the appropriate authorities. Notice of the exercise of the Option shall be given by TENANT to the LESSOR, in writing by certified mail, return- receipt requested. Notice shall be deemed effective on the date it is posted. On the date of such notice, the following Agreement shall take effect: LEASE AGREEMENT 1-. LESSOR hereby leases to TENANT that certain parcel of real property, containing approximately 2500 square feet, situated At 1201 Main Street, Sebastian, Indian River County, State of Florida, together with the nonexclusive right for ingress and egress, seven (7) days a week, twenty-four (24) hours a day, on foot or motor vehicle, including trucks, and for the installation E and maintenance. of utility wires, cables, conduits and pipes over, under - or - along a twenty foot (2 0 ' ) wide right of way extending from the nearest public right of way, namely Cross Street, to the leased parcel, said leased parcel and right of way for access being substantially as described herein in Exhibit "A" and as shown enclosed within red lines on Exhibit "A" attached hereto and made a part hereof. - Said leased parcel and right of way for access. shall be hereinafter referred to as "Property". LESSOR shall cooperate with TENANT in TENANT's effort to obtain utility services along said right of way by signing such documents or easements as may be required by said utility companies. In the event any public utility is unable to use the aforementioned right of way, the LESSOR hereby agrees to grant an alternative right of way or utility easement either to the TENANT or to the public utility at no cost to the TENANT. 2. LESSOR also hereby grants to TENANT the right to survey said Property, and the legal description on said survey shall then become Exhibit 111311, which shall be attached hereto and made a part hereof, and shall control in the event of discrepancies between it and Exhibit "A". LESSOR grants TENANT the right to take measurements, make calculations, and to note other structures, setbacks, uses, or other information as deemed by TENANT to be relevant .and pertinent, as such information relates to. LESSOR Is real property, leased or otherwise abutting or surrounding the Property. Cost for such survey work shall be borne by the TENANT. 3. This Agreement shall be for an initial term of five ( 5 ) years beginning on the date the Option is exercised by TENANT at an annual rental of Eighteen Thousand Dollars ($18,000), plus applicable taxes, to be paid in equal monthly installments on the first day of the month, in advance to City of Sebastian or to such other person, firm or place'as the LESSOR may, from -time to time, designate in writing at least thirty (30) days in advance of any rental payment date. 4. TENANT shall have the option to extend this lease for four (4) additional five (5) year terms,.and such extensions shall automatically occur unless TENANT gives LESSOR written notice of its intention not to extend this Lease Agreement at least six (6) months prior to the end of the current term. 5. The annual. rental for the first (1st) five year extension term shall be increased to Dollars ( ); the second (2nd) five (5) year extension term shall be increased to Dollars ( ) ; the third ( 3rd) five ( 5 ) year extension term shall be increased to Dollars ( ) ; and the fourth (4th) five ( 5 ) year extension term shall be increased to Dollars ( } 3 6 . If at the end of the fourth (4th) five ( 5 ) year extension term this Agreement has not been terminated by either party by giving to the other written notice of an intention to terminate it at least six (6) months prior to the end of such term, this Agreement shall continue in force upon the same covenants, terms and conditions for a further term of one (1) year, and for annual terms thereafter until terminated by either party by giving to the other written notice of its intention to so terminate at least six ( 6 ) months prior to the end of such term. Monthly rental for this period shall be equal to the rent paid for the last month of the fourth (4-th) five ( 5 ) year extension term. 7. TENANT shall use the Property for the purpose of constructing, maintaining and operating a Communications Facility and uses incidental thereto, consisting of a building or buildings as necessary now or in the future to shelter telecommunications equipment and related office space, a free standing monopole or three sided antenna structure of sufficient height now or in the future to meet TENANT's telecommunication needs and all necessary connecting appurtenances. TENANT may at its discretion modify its antenna structure or building(s). A security fence consisting of chain link construction or similar but comparable construction may at 'the option of TENANT be placed around the perimeter of the Property (not including the access easement). All improvements shall be at TENANT's expense. LESSOR grants TENANT the right to use adjoining and adjacent land as is reasonably required during construction, installation, maintenance, and operation of the Communications Facility. TENANT will maintain the Property in a reasonable condition. It is understood and agreed that TENANT's ability to use the Property is contingent upon its obtaining after the execution date of this Agreement, all of the certificates, permits and other approvals that may be required by any federal, state or local 'authorities. LESSOR shall cooperate with TENANT in its effort to obtain such approvals, including dedicating right of way or other customary extractions, and shall take no action which would adversely affect the status of the Property with respect to the proposed use thereof by TENANT. LESSOR agrees to sign such papers as are customarily and reasonably required to file applications with the appropriate zoning authority and/or commission for the proper zoning of the Property as required for the use intended by the TENANT. TENANT will perform all other acts and bear expenses associated with the rezoning procedure. LESSOR agrees not to register any written or verbal opposition to the rezoning procedures. Notwithstanding any other termination rights available to TENANT under this Agreement, TENANT, at its sole and absolute discretion, shall have the right to terminate this Agreement with ninety (90) days prior written notice to LESSOR and a lump sum payment to LESSOR in an amount equal to six months rental at the rate in effect at the time of termination. Notice of the TENANTTIs exercise of its right to terminate shall be -given to 4 LESSOR in writing by certified mail, return receipt requested, and shall be effective upon receipt of such notice by the LESSOR as evidenced by the return receipt. All rentals maid to said termination date shall be retained by the LESSOR. - Upon such termination, this Agreement shall become null and void and all the parties shall have no further obligations, including the payment of money, to each other. 8. TENANT shall indemnify and hold.LESSORharmless against any claims of liability or loss from personal injury or property damage resulting from or arising out of the use and occupancy of the Property by the TENANT, its servants or agents, excepting, however, such claims or damages as may be due to or caused by the acts of the LESSOR, or its servants -or agents. 9. LESSOR agrees that TENANT may- self -insure against any loss or damage which could be covered by a commercial general public liability insurance policy. 10. TENANT shall. be responsible for making any. necessary returns for and paying any and all property taxes separately levied or assessed against its improvements on the Property. TENANT shall reimburse LESSOR as additional rent for any increase in real estate taxes levied against the Property which are directly attributable to the improvements constructed by TENANT and are not separately levied or assessed against TENANT's improvements by the taxing authorities. 11. TENANT upon termination of this Agreement, shall, within a reasonable period, remove its personal property and fixtures and restore the Property to its original above grade condition, reasonable wear and tear excepted. At LESSOR's option when this Agreement is terminated and upon LESSOR's advance written notice to TENANT, TENANT will -leave the foundation and security fence to become property of LESSOR. if such time for removal causes TENANT to remain on the Property after termination of this Agreement, TENANT shall pay rent at the then existing monthly rate or on the existing monthly pro -rata basis if based upon a longer payment term, until such time as the removal of personal property and fixtures are completed. 12. Should the LESSOR, at any time during the term of this Agreement, decide to sell all or any part of his real property which includes the parcel of property leased by TENANT herein and/or the right of way thereto to a purchaser other than TENANT, such sale shall be under and subject to this Agreement and TENANT's rights hereunder. LESSOR agrees not to sell, lease or use any other areas of the larger parcel upon which the Property is situated for the placement of other communications facilities if, in TENANT's sole judgment, such installation would interfere with k the facilities in use by TENANT. 13. LESSOR covenants that TENANT, -on paying the rent and performing the covenants shall peaceably and quietly have, hold and enjoy the Property. 14. LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the real property and has full authority to enter into and execute this Agreement. LESSOR further covenants that there are no other liens, judgments or impediments of title on the Property. 15. It is agreed and understood that this Agreement contains all agreements, promises and understandings between the LESSOR and TENANT and that no verbal or oral agreements, promises or understandings shall be binding upon either the LESSOR or TENANT in any dispute, controversy or proceeding at law, and any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the parties. 16. This Lease Agreement and the performance thereof shall be governed, interpreted, construed and regulated by the laws of the State of Florida. 17. This Agreement may not be sold, assigned or transferred at any time except to TENANT's principal, affiliates or subsidiaries of its principal or to any company upon which TENANT is merged or consolidated. As to other parties, this Agreement may not be sold, assigned or transferred without the written consent of the LESSOR, such. consent not to be unreasonably withheld. Notwithstanding the above, TENANT may permit other parties to co - locate and/or sublease on the Property, with no obligation to LESSOR, as long as this Agreement is in effect. 18. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested, addressed as follows (or any other address that the party to be notified may have designated to the sender by like notice) : LESSOR: City of Sebastian 1225 Main Street Sebastian, FL 32958 Attn: City Manager TENANT: BellSouth Mobility Inc 5201 Congress Avenue Boca Raton, Florida 33487 Attn: Network Real Estate Manager 6 A., 1 19. This Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of the parties hereto. 20. At LESSOR's option, this Agreement shall be subordinate to any mortgage by LESSOR which from time to time may encumber all or part of the Property or right of way, provided, however, every such mortgage shall recognize the validity of this Agreement in the event of a foreclosure of LESSOR's interest and also TENANT's right to remain in occupancy of and . have access to the Property as long as TENANT* is not in default of this Agreement. TENANT shall execute in a timely manner whatever instruments as may reasonably be required to evidence this subordination clause. In the event the leased Property is encumbered by a mortgage, the LESSOR, no later than thirty (30) days after this lease is exercised, shall have obtained and furnished to TENANT a non -disturbance instrument in recordable form for each such mortgage. 21. If the whole of the Property or such portion thereof as will make the Property unusable for the purposes.herein leased, are condemned by any legally constituted authority for any public use or purpose, then in either of said events the term hereby granted shall cease from the time when possession thereof is taken by public authorities, and rental shall be accounted for as between LESSOR and TENANT as of -that date. Any lesser condemnation shall in no way affect the- respective rights and obligations of LESSOR and TENANT hereunder. Nothing in this provision shall be construed to limit or affect TENANT's right to an award of compensation of any eminent domain proceeding for the taking of TENANT's leasehold interest hereunder. 22. LESSOR and TENANT agree that this Option and Lease Agreement will be forwarded for recording or filing in the appropriate office of the County of Indian. River, and LESSOR and TENANT agree to take such actions as may be necessary to permit such recording or filing. TENANT, at TENANT's option and expense, may obtain title insurance on the space leased herein. LESSOR, shall cooperate with TENANT's efforts to obtain such title insurance policy by executing documents or, at TENANT's expense, obtaining requested documentation as required by the title insurance company. If title is found to be defective, LESSOR shall use diligent effort to cure the defects in title. In the event the Property is encumbered by a mortgage and the mortgage requires the consent of the Mortgagee to leases and/or improvements on the Property, Lessor shall provide TENANT with the prior written consent of the Mortgagee to this Option and Lease Agreement, as required under the terms of the mortgage. At TENANT's option, should the LESSOR fail to provide requested documentation within thirty (30) days of TENANT's request, or fail to provide the Non - Disturbance instrument(s) as noted in Paragraph 20 of this Agreement, TENANT may withhold and accrue the monthly rental until 16 suchtime as the requested documents) is (are) received, or if title is found to be defective and LESSOR has failed to cure the defects within a reasonable period, TENANT may cancel this Agreement or cure the title defect at LESSOR' -s expense utilizing the withheld payments. 23. If TENANT defaults in fulfilling any of the covenants . of this Agreement and such default shall continue for sixty (60) days after TENANT's receipt of written notice from LESSOR specifying the nature of said default, or, if the said default so specified shall be of such a nature that the same cannot be reasonably cured or remedied within such sixty ( 6 0 ) day period, if. TENANT shall not in good faith commence the curing or remedying of such default within such sixty (60) day period and shall not thereafter diligently proceed therewith to completion, then in any one or more of such events this Agreement shall terminate and come to an end as fully and completely as if such were the day herein definitely fixed for the end and expiration of this Agreement and TENANT shall then quit and surrender the Property to LESSOR as provided herein. 24. If TENANT's Communications Facility or improvements are damaged or destroyed by fire or other casualty, TENANT shall not be required to repair or replace the Communications Facility or any of TENANT's improvements made by TENANT. TENANT shall not be required to expend for repairs more than twenty-five percent (25%) of the replacement value of the Communications Facility or any improvements. Additionally, if completion of the repairs is not possible within ninety (90) days following the date of the damage or destruction, TENANT may terminate this Agreement by giving written notice to LESSOR. Termination shall be effective immediately after such notice is given. Upon such termination, this Agreement shall become null and void and LESSOR and TENANT shall have no, other further obligations to each other, other than TENANT's obligation to remove its property as hereinafter provided. 25. In connection with any litigation arising out of this Agreement, the prevailing party, whether LESSOR or TENANT, shall be entitled to recover all reasonable costs incurred including reasonable attorney's fees for services rendered in connection with any enforcement of breach of contract, including appellate proceedings and post judgment proceedings. 26. In accordance with Florida Law, the following statement is hereby made: RADON GAS: Radon is a natural occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are - exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and 8 (_ i C .radon testing -may be obtained from your county public health unit. 27. LESSOR shall hold TENANT harmless from and indemnify TENANT against and from any damage, loss, expenses or liability resulting from the discovery by any person of hazardous substance generated, stored, disposed of,.or transported to -or over Property, as long as such substance was not stored, disposed of, or transported to or over the Property by TENANT, its agents, contractors, employees, or invitees. TENANT will be responsible for any and all damages, losses, and expenses and will indemnify LESSOR against and from any discovery by any persons or such hazardous wastes generated, stored, or disposed of as a result of TENANT's equipment and uses of the aforementioned Property. 28. This Agreement shall be executed in three (3) counterparts, each of which shall be deemed an original, and such counterparts shall constitute but one and the same Agreement. IN WITNESS WHEREOF.. the parties hereto have set their hands and affixed their respective seals. LESSOR ATTEST: r� 1,726�. Kaf ' hryx# M. O'Halloran, CMC/AAE City Clerk THE CITY OF SEBASTIAN: r� errenc . Moore City Marnager Approved as to Form and Legality for Reliance by the City of Sebastian only: . q-� < Rich Stringer, C ty Attorney STATE OF FLORIDA COUNTY OF The of egoing instrument was acknowledged before me this IS��e day of �, 2 0 0 0 , -by Terrance ' R . Moore and Kathryn M. O'Ha oran,* as City Manager and City Clerk, respectively, of the City of Sebastian, a Florida municipal corporation, are personally known to me or as i entification and who did (did no )ake an oath. Iq TARY PUBLIC Seal) Print Name: My Commission Expires •••...... 1.•�•�. ;.•`=• " ANN V. ROUS%5J8400 MY COMMISSION # EXPIRES: March 1!18,2002 •RPh • , Bonded Ther Note ry Pobk 10 Signed, sealed and delivered in the presence of: Witness: Print Name Witness: Print Name: STATE OF COUNTY OF The foregoing instrument was of as Georgia corporation, who is produced who did ( did not) TENANT BELLSOUTH MOBILITY INC By: PrintName: Title: acknowledged before me this day 2000, by of BELLSOUTH MOBILITY INC, a personally known to me or who has as identification and take an oath. 11 NOTARY PUBLIC (Seal) Print Name: My Commission Expires: r A t Addendum to Option and Lease Agreement Date �a.1� 2000 by an between CITY SEBASTIAN, as LESSOR, and BELLSOUTH MOBILITY INC., as TENANT 1. Insert as the next to last paragraph in the Option Language -the following: Further, during the Option Period TENANT shall be allowed to maintain the existing temporary facility located on the 1201 Main Street site. The monthly rent for the temporary facility during the first six months of the Option Period shall be One Thousand Dollars. ($1,000.00), which shall increase for the seventh and any subsequent month to the monthly amount of One Thousand Five Hundred Dollars ($1,500.00). In the event the Option terminates without exercise of the same, the temporary facilities shall be removed by TENANT and the site restored within ninety (90) days. Rent shall continue to be due until such removal and restoration is completed. 2. In paragraph 3 of the lease, insert before "plus applicable taxes..." the following "to be adjusted annually as set forth below," 3. Paragraph 5 shall be replaced with the following: On the anniversary date of the exercise of the Option, the annual rental shall be adjusted upwards four percent over the amount for the.prior year. 4. Delete the last sentence in paragraph 6 and add the following sentence: The rental amount for each such one year extension shall continue to be subject to the rent adjustment set forth in paragraph 5, above. 5. In the first sentence in paragraph 7 after ...structure of efficient height add: Up to 175 feet 6. In the second sentence of paragraph 7 after "TENANT may at its discretion modify it's antenna structure or building..." add: However, the antenna shall at all times be covered with an antenna canister or other concealing device agreeable to LESSOR. T 1 1 7. In paragraph 11 delete the .first 2 sentences and replace it with the following: Tenant upon termination of this Agreement shall, subject to Lessor's Retention Option (defined below), within a reasonable period, remove its personal property and fixtures and restore the Property to its original above grade condition, reasonable wear and tear. excepted. At Lessor's option when this is Agreement is terminated and upon Lessor's advance written notice to Tenant (the "Lessor's Retention Option"), Tenant will leave i) the telecommunications tower structure, the foundation and security fence or (ii) the foundation and security fence; provided, however, that if the termination occurs during the first ten (10) years of the lease term, Lessor shall pay to Tenant within ten (10) days after demand, the then fair market value of the tower as reasonable estimated by Tenant.. If Lessor shall fail to timely make such payment, then Tenant shall have the right to remove the telecommunications tower structure. Any conveyance of the telecommunications tower structure to the Lessor shall be in "as is, where is, with all faults" condition and shall be by quitclaim bill of sale. 8.. In paragraph 12 last sentence delete "sole" and add "TENANTS reasonable judgment." 9. At the end of paragraph 16 add: And venue for any action related hereto shall lie exclusively in Indian River County, Florida. 10. The last sentence in paragraph 17 should be changed to read as follows: Notwithstanding the above, TENANT may permit other parties to co -locate and/or sublease antenna space on the Property with no obligation to LESSOR, provided no use of ground structures is required, as long as this agreement is in effect. I- l6 11. In paragraph 24 remove the last line of the paragraph after. the comma and add the following: Other than TEN.ANT's obligation to remove its property and pay rent during the pendency of said removal as provided in paragraph 11, above. This Addendum is attached to the Agreement, dated as os even date therewith and made a part thereof. The parties have signified agreement to this Addendum by initialing it as follows: Initials as to LESSOR: Initials as to TENANT: �j June 14, 2000 Ms. Debbie Lewis City of Sebastian 1225 MAIN STREET o SEBASTIAN, FLORIDA 32958 TELEPHONE (561) 589-5330 0 FAX (561) 589-5570 Real Estate Administrator Bellsouth Mobility 5201 Congress Avenue BocaRaton,FL 33487 Dear Ms. Lewis: Re: Entry Testing Agreement for proposed cell site "VER06" Enclosed please find one (1) signed original of Entry and Testing Agreement between the City of Sebastian and Bellsouth Mobility, Inc., for the proposed cell site "VER06". We have retained one (1) fully executed agreement for our file. If we can be of any further assistance, please feel free to contact me. Sincerely, Jean M. Tarbell Executive Assistant Enclosure WHITE HOUSE 'An Equal Opportunity Employer' MIIIENNIUMCOUNOI Celebratina Our 75th Anniversary BellSouth Mobility 5201 Congress Avenue Boca Raton, Florida 33487 FEDERAL. EXPRESS June 1, 2000 561995-3000 @ BELLSOUTH Mobility 1 f -F� &%IQ ` � n �„c 619-L - fi Sebastian Police Stationc,Q Attn: John Van Antwerp S W3 1201 Main Street C1u�- Sebastian, FL 32958 Re: Entry and Testing Agreement between the Sebastian Police Station and BellSouth Mobility, Inc. for proposed cell site "VERO6" Dear Mr. Van Antwerp: Enclosed are two (2) copies of an Entry and Testing Agreement for your property located at 1201 Main Street, Sebastian, FL., signed by BellSouth Mobility, Inc. Please sign both copies, keep one original for your records, and return one signed original to my attention. In addition, our insurance company will be sending you a copy of an insurance certificate that we have purchased for the above reference property. If you have any questions, please feel free to contact me at 561-995-3733. Sincerely, aax&� kwrl-bb Debbie Lewis Real Estate Administrator Real Estate & Construction Network - State of Florida Encl (2) V ..a 'R VER06 ENTRY AND TESTING AGREEMENT This Entry and Testing Agreement ("Agreement") is made as of the �day of 2000, between BELLSOUTH MOBILITY INC ("BellSouth") and The Seb stian Police Station ("Owner"), concerning the following described property: 1201 Main Street, Sebastian, FL 32958 Owner currently owns the Property. BellSouth and Entrant are considering the negotiation of an agreement whereby BellSouth will lease, sublease or license certain portions of the Property. In order for BellSouth to determine the viability and feasibility of the Property as a tower or antenna site, BellSouth desires to enter upon and inspect the Property and/or to locate temporarily communications equipment on the Property to conduct short term radio propagation tests; and As an accommodation to BellSouth, Owner is willing to grant permission to BellSouth, its employees, agents or contractors to enter upon the Property solely to conduct such investigations, under the terms and conditions stated herein. In consideration of the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Owner grants to BellSouth, its contractors, agents, employees and assigns a right of entry and license to enter upon the Property solely to conduct and perform radiopropagation tests the "Permitted Activities" M i&*Perra�itted A`aties are P ( ) £..::, �.x $...`v'. "rle p .:fir:: .....'._'r Si:. a se <!..w s :.': & ...::•.'.s. ,��i 7v i s ' : i t .:.a„ }... T„ ,,-.a t. }- is•' i R ' •'i:. >: i understood o tear the ve `k* I�pla ernen o�F� awr tlio �trarr : lite b, r crane;: orV mY the .. . ... s f ,. ..:°:. '._.._ ::5:. -- `rJ. ;''-' :f .F:.<h.. ,.f.'iaw:` Sr.'i : T. ( ., .Kt :. e.;e•v i.., _. .- ie..- - ..n-,':�'_� t;'i ,..'_.. ..; ' .,:.. .. `f.` butltl�ragy a i 'e he�gtat req`utr�e�d for pyo ntral peri. , amentaante�na �lAtement BellSouth's entry rights are specifically limited to the Permitted Activities and to the Property and shall not include any other activities, on the Property or any other portion of the property surrounding the Property. BellSouth shall be responsible for any and all costs related to the Permitted Activities, including any temporary installation, operation and removal of equipment on the Property. 2. BellSouth agrees to comply with all local, state and federal laws, rules and ordinances applicable to the Permitted Activities. BellSouth further agrees to exercise due care in the performance of all Permitted Activities on the Property, and not to interfere with Owner's or any other party's activities on the Property. BellSouth shall promptly repair, at its cost, any damage to Property, or any other property caused by the acts or omissions of BellSouth, its agents, employees, contractors or subcontractors. 3. BellSouth shall indemnify and hold harmless Owner, its employees, agents or contractors, from all claims, actions, damages, liability and expense, including VER06 without limitation attorney's fees and costs, in connection with personal injury or property damage arising out of the acts or omissions of BellSouth, its employees, agents or contractors, including without limitation the Permitted Activities, upon the Property, or any other portion of the property surrounding the Property. This indemnification shall survive the expiration or termination of the Agreement. 4. BellSouth shall maintain, and shall have it contractors and subcontractors maintain, adequate insurance coverage. 5. The term of this Agreement shall be from the Execution Date to a date forty-five (45) days from the Execution Date. 6. This Agreement constitutes the entire understanding between the parties with respect to the activities contemplated by this Agreement. All prior agreements or understandings, whether oral or written, are superseded. This Agreement may be amended only by a written document duly executed by the parties. This Agreement is governed by the laws of the State wherein the Property is located. IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals as of the date first above written. BELLSOUTH MOBILITY INC VA - By: _ Name: Title: _ Date: OWNER B Name: Title: Date: 6, // c� Z-Q�4� 6-\�