HomeMy WebLinkAboutCity of Tamarac Resolution R-2022-027 Installation of Cellular Antenna Agmt w/ Dish Wireless LLCTemp. Reso # 13750
March 9, 2022
Page 1
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2022- 0;�
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA, APPROVING AND AUTHORIZING
THE APPROPRIATE CITY OFFICIALS TO EXECUTE AN
AGREEMENT WITH DISH WIRELESS, LLC FOR THE
INSTALLATION OF A CELLULAR ANTENNA AND
ASSOCIATED GROUND EQUIPMENT ON THE EXISTING
TOWER AT THE CITY'S WATER TREATMENT PLANT
PROPERTY AT A MONTHLY RATE OF $4,000; AUTHORIZING
THE APPROPRIATE CITY OFFICIALS TO EXECUTE ANY
PERMIT APPLICATIONS AS MAY BE REQUIRED ON BEHALF
OF THE CITY AS OWNER OF THE PROPERTY; PROVIDING
FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, DISH Wireless. has requested a lease agreement for the installation of
an antenna and associated ground equipment on the existing tower at the City's Water
Treatment Plant Property; and
WHEREAS, the proposed agreement is for five (5) years with five (5) automatic five
(5) year extensions thereafter; and
WHEREAS, rent is set at $4,000 per month with three percent (3%) increase at the
anniversary of the lease agreement effective date; and
WHEREAS, the Interim Assistant City Manager recommends approval of the
agreement; and
and
WHEREAS, it is the City Manager's recommendation to execute the agreement;
WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be in
the best interest of the citizens and residents of the City of Tamarac to authorize the
appropriate City Officials to execute an agreement with DISH Wireless, LLC. for the
installation of a cellular antenna on the existing 140 foot tower and associated ground
Temp. Reso # 13750
March 9, 2022
Page 2
equipment at the City's Water Treatment Plant Property.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA:
SECTION.I.: That the foregoing "WHEREAS" clauses are hereby ratified and
confirmed as being true and correct and are hereby made a specific part of this Resolution.
SECTION 2: The City Commission approves the Lease Agreement with DISH
Wireless, LLC. (attached hereto as "Exhibit 1") for the installation of a cellular antenna and
the associated ground equipment and The appropriate City Officials are authorized to
execute the associated documents.
SECTION 1 The appropriate City Officials are authorized to execute all permit
applications as may be required, on behalf of the City as Owner of the property.
SECTION 4: All resolutions or parts of resolutions in conflict herewith are hereby
repealed to the extent of such conflict.
SECTION 5: If any clause, section, other part or application of this Resolution is
held by any court of competent jurisdiction to be unconstitutional or invalid, in part or
application, it shall not affect the validity of the remaining portions or applications of this
Resolution.
Temp. Reso # 13750
March 9, 2022
Page 3
SECTION 6: This Resolution shall become effective immediately upon its passage
and adoption.
PASSED, ADOPTED AND APPROVED this day of � ' 4A , 2022.
ATTEST:
Jri'J`NIIF _R JOH 'S N, MC
CITY CLERK
ICHELLE J. G EZ, MAYOR
RECORD OF COMMISSION VOTE:
MAYOR GOMEZ Ali)
DIST 1: COMM. BOLTON
DIST 2: V/M GELIN '
DIST 3: COMM. VILLALOBOS
DIST 4: COMM. PLACKO V6
I HEREBY CERTIFY that I
have approved this RESOLUTION as to form.
JIIHN HERIN, JR:
CITY A TORNEY
Instr# 118055280 , Page 1 of 23, Recorded 04/05/2022 at 09:52 AM
Broward County Commission
Mtg Doc Stamps: $0.00 Int Tax: $0.00
Upon Recording, Return to;
DISH Wireless L.L.C.
Attention- Lease Administration
5701 S. Santa Fe Dr,
Littleton, CO 80120
Re: MIMIA00777A
(Space above for Recorder's Office)
MEMORANDUM OF SITE LEASE AGREEMENT
This Memorandum of Site Lease Agreement ("Memorandum) is made this tO day of
KU f� r 2022, by and between City of Tamarac, a Florida municipal corporation
"Landlord"), having a place of businessat 7525 NW 88th Avenue, Tamarac, FL 33321, and DISH
Wireless L.L.C., a Colorado limited liability company ("Tenant), having a place of business .at9601
South Meridian Boulevard, Englewood, Colorado 80112. Tenant and Landlord are at times
collectively referred to hereinafter as the "Parties" or individually as the "Party". This
Memorandum is summarized as follows;
.1. Tenant and Landlord entered into a Site Lease Agreement ("Agreement") with an
effective date of RO-f dr%. .2- , 2022, for the purpose of. Installation,
operation, maintenance, and management of a wireless communications facility. All of
the foregoing, in addition to the provisions set forth in the Agreement between the
Parties, are incorporated by reference and made a part herein.
2. Landlord, or one of its affiliates, Is the ownerof a certain portion of real property located
at7801 NW 61s' Street, Tamarac, FL33321 being more particularly described in ExhlbltA,
attached hereto and made a part herein (the "Property").
3. Landlord has leased to Tenant' and Tenant has leased from Landlord, space for Tenant's
equipment Instal lation on the Property in the locations as described ordepicted in Exhibit
8, attached hereto and made a part hereof (the "Premises"), that includes certain right
of ways or grants of easements for access and utilities as provided in the Agreement
(which may or may not be described or depicted in Exhibit B) which easements are in
effect, or maybe acquired, or granted, throughout the term of the Agreement as renewed
or extended subjecttothe terms and conditions as setforth in the Agreement.
TENANT SITE NUMBER: MIMI AO0777A
Instr# 118055280 , Page 2 of 23
4, The Agreement has an initial: Term of five (5) years commencing on the Commencement
Date, asset forth In the Aareement. The Initial Term shall automatically be extended for
up to five (5) additional five-year termsuniessTe.nantelects not to extend the Agreement
in the manner as:prescribed in the Agreement.
5. Duplicate copies of the originals of the Agreement are in the possession of the Landlord
and Tenant at the addresses set forth above and reference should be made thereto for a
more cletalle . d description thereof and forresolution of any questions pertaining thereto.
6. It it expressly understood and agreed by all Parties that the sole purpose of this
Memorandum is to give record notice of the Agreement,; it. being distinctly understood
and agreed that said Agreement constitutes the entire agreement between Landlord and
Tenant with respect to the Premises and is hereby incorporated by reference. The
Agreement contains and sets forth additional fights, terms, conditions, and obligations
not enumerated within this Memorandum which govern the Agreement. This
Memorandum is for information purposes only and nothing contained heroin may be
deemed In any way to modify or vary any of, the terms or conditions of the Agreement
In the event of any inconsistency between the terms of the Agreement and this
Memorandum, the terms of the Agreementshall control. The rights and obligationsset
forth in the° Agreement shal I be bindingupon and inure to the benefltof the Parties and.
thei r respective heirs, representatives, successors, and assigns.
[Reminder of page intentionally left blank. Signoturepoyefollows.]
TENANT SITE NUMBER: MIM.IA00777A
Instr# 118055280 , Page 3 of 23
IN WITNESS WHEREOF, the Parties have executed this Memorandum of Site Lease Agreement as
oft the day and -year last written below:
The City of Tamarac,
a Florida municipal corporation
TENANT
DISH Wireless L.L:C.
Reminder of Page intentionally left blank. Acknowledgement page ollOws.j
TENANT ITENUMBER- MIMtA00777A
Instr# 118055280 , Page 4 of 23
LANDLORD'S ACKNOWLEDGMENT
r*. &
STATE OF r- k,-
SS:
COUNTY OF it LjAr�
- t
On this C-X day of Maf L4, 20-i-LI-before me, the undersigned a Notary
Public in and for the county and state aforesaid, personally appeared
Lckftk StAr-Ltgg I SA,_(person/company) to me known to be the identical person who
executed the within and foregoing Instrument as its'UWow"itle), and acknowledged to me
that he executed the same as his free and voluntary act and deed, and as the free and voluntary
act and deed of said.t,*44 W 3j_0SWJcompany),, for the uses and purposes therein set forth.
Given under my hand and seal the day and year last above written.
Notary P blic
MY Commission Expires:
NANCY RiVEKA
MyCOMMISSION#1`1042516
Commission No-
EXPIRM.My 6.2025
TENANTS ACKNOWLEDGMENT
-STATE d
COUNTY OF Al� SS:
eN-1%
On this day of 20c" before me, the undersigned a Notary Public
and or the county and state aforesaid, personally appeared
-N thAn of DISH Wireless LAC. to me known to be the identical
person who ex.ecVed the within and foregoing instrument as its iZkO {title), and
acknowledged to me that he executed the same as his1free and voluntary act and deed, and as
the free and voluntary act and deed of said DISH Wireless L.L.C., for the uses and purposes
therein set forth.
Given under my hand and seal the day and year la�§t-above wrifter"I.-
C DENISE FULLER
Notary Public
( ot
State of Colorado
LENotary ID * 2000'40119(6320 Not blic
", om,
MyCommissionCx iresOB-18-2024
My Commission Expire
Commission No,,
4
TENANT SITENUMBER: MIMIA00777A
Instr# 118055280 , Page 5 of 23
EXHIBIT A
I egal Description of the Property
Property t ddress; 7801 NW. 61st Street; Tamarac, FL 33321
Parcel Identification Number.4941Q931M.10
Legal Description o the Propert :Parcel "A" ofTAMARAC UTILITIES PLAT' ivo_al ONEwording to
tyre tart thereof, reco ed n, Plat Book 101, Page, 47, of the Public Records of Broward County,
Florida
TEtVW SITE NUMBER: MIMIAOO,777A.
Instr# 118055280 , Page 6 of 23
EXHIBIT 8
The Premises
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NOWONVIA
in, 61M MOW
ww#z, ft 3w5
I
6
TENANT SITE NUMBER: MI MIA00777A
Instr# 118055280 , Page 7 of 23
WMINIAN
The Premises, continued
ownE W-21
Instr# 118055280 , Page 8 of 23
Cell Site;
Tamarac I MIMIAW777A.
State:
Florida
County:
Broward
SITE LEASE AGREEMENT
THIS TE LEASE AGREEMENT (the "Lease") is dated and entered into on
�&Mdn, 7-4 X 20224"Effective (late") between The City of Tamarac, a Florida rattnic ipa I
corporation with principal offices located at 7525 NW SPI, Avenue, Tamarac. FL 33321
("Landlord"), and DISH Wireless L,L.C., a Colorado limited liability eonvally having a place of
business at 9601 S. Meridian Blvd., EnglewcKA Colorado 80112 ("Tenant"). Landlord and Tenant
may be referred to within this Lease individually as a "Party" or together as the -Parties."
Leased Property and Permitted Uses. Landlord hereby leases to Tenant
approximately one htmdrcd (100) square feet (the "Ground Space") of certain real property (the
"Property") shown by sketch and legal description on Exhibit "A" attached hereto, having a
street address of 7801 NW (Dist Street, Tamarac, FL 33321. Landlord also leases to Tenant space
on the Landlord's monopole tower located on the Property (the 'Tower") at a centerline located
at the one hundred three (l03') foot level in addition to five (5) vertical feet above and below the
cctiterlinc (the 'Tower Space") . Landlord further grants to Tenant for the term of the Lease, a
non-exclusive casement (the "Easement") upon adjoining property owned by Landlord for the
purposes of pedestrian and vehicular ingress and egress. as reasonably necessary, to and from an
open and improved public road and for the installation and operation of utilities servicing the
Property and for the consmiction. operation, and mairtcriance of all iinprovements thereon (the
location of the Easement is also shown on Exhibit 118"). The Oroujul Space, the Tower Space
anti nd the Easement are collectively referred to as the "Leased Property_"' The Leased Prof" may
be used for W the transmission and reception of communication signals, (ii) the construction,
operation, alteration, maintenance, repair, replacement and relocation, of related facilities, towers,
antennas, equipment related to (i). and (iii) activities necessary to any of the foregoing
(collectively, the 'Tenant's Permitted Use"). Tenantackm-twledges that the Leased Property is
on property and in a conipowui owned by the City of Tamarac and existing [cases located on the
Property may remain in place.
2. Initial Term_. This Lease shall commence on the Effective Date and continue for
five (5) years (the "initial Term"). unless sooner ten-niiiated as provided herein.
3. Renewal Terms. Provided Tenant is not then, in Default (as defined in Section 10
herein). this Least shall automatically renew for five (5) additional five-year terms (each being a
-Renewal Term"), unless Tenant notifies Landlord in writing of Tenant's iucirtion not to renew
this Lease at least 00 days prior to the expiration of the Initial Term or any then-ctuTcnt Renewal
Term.
I :75070$24i 31SW
Instr# 118055280 , Page 9 of 23
4. Duty Dilite nce Pt riod. For tip to 90 days from the Effective Date ("Due Diligence
Period"). Tenant and its agents, engineers, surveyors and other representatives shall have the right
to enter upon the Property to conduct geological or engineering tests, apply for and obtain
applicable govcrnmental perrnits and approvals, and otherwise to do those things on or off tile
Property that are required by the City of Tamarac, or, in the opinion of Tenant, are necessary to
determine the feasibility or suitability of the Property for Tenant's Pertnitted Use, all at Tenant's
expense. Tenant shall not be liable to Landlord or any third party on account of any pre-existing
defect or condition on or with respect to the Property, whether or not such defect or condition is
disclosed by Tenant's inspection. If Tenant, in its sole discretion, determiiies the Property is not
suitable for the Permitted Use. Tenant may terminate this Lease. Prior to the expiration of the Due
Diligence Period, Tenant shall send written notice to Landlord of its intent to terminate this Lease
or proceed under its terms (the "Due Diligence Notice"). If Tenant elects to terminate this Lease,
neither Landlord nor Tenant shall have any further obligation or liability under this Lease except
as otherwise provided herein.
5. Governmental Approvals, During the Due Diligence, Period, Tenant shall, at its
sale cost and expense, obtain any and an permits, consents and approvals from JoLal, state or
federal government authorities as required by Tenant to construct and operate Tenant Antenna
Facilities (collectively. the "Governmental Approvals"). Landlord agrees to cooperate with the
Tenant at no cost to the Landlord and to execute such documents reasonably required to obtain the
Government Approvals. with the exception of the approvals required Irom the City of Taniarac.
The making of this Agreement does not constitute an abrogation of the Landlorlys, governmental
land development regulatory power, and the Tenant's petformance is contingent upon all such
development approvals being obtained. Should the City of Tamarac or another _gOvernincrita I
authority agency with jurisdiction not approve any required applicat,k)n for developrnent approva I,
prerequisite to the installation or operation of the Tenant Antenna Facilities, this Agreement shall
automat ally become null and void and there shall be no basis for a damage claim as a result of
such den
ied development order.
G. Rent. Beginning on the Commencement Date (as defined below) Tenant shall Pay
to Landlotid, inn advance, monthly base rental payments of Four Thousand and No/100 Dollars
($4,000) ("Rent") on or before the first day of each month. Rent shall be payable to Landlord at
City of Tamarac. 7525 N.W. 88th Avenue, Tamarac, Florida 33321-2401, Attention: Finance
Department. Landlord will provide the requisite information for Tenant to pay Rent by direct
deposit to Landlord's bank, but the implementation of the direct deposit system shall be at Tenants
sole expense. On each annual anniversary of the EtYcctivc Date, Rent will increase by three percent
(Y"-'O, exclusive of sales tax. The "Commencement Date" shall be the P, day of the month
following the earlier of (i) the date that is thirty (30) days after the date that Tenant receives the
Ckwernment Approvals, or (ii) the (Late Tenant bcgins operating the Antenna Facilities. Landlord
and Tenant shall agree in writing as to the Coniniencerricot Date.
7. holdover. Tenant has no right to retain possession of the Leased Property beyond
the expiration or termination of this Lease. IfTcnant tails- to vacate the Leased Property after the
expiation or termination of the Lease, Tenant shall be. at Landlord's sole election, a tenant at will
or at sufferance, and Tenant shall pay, in addition to any other rent or other sums then due
2
1275070$2,X MAW
Instr# 118055280 , Page 10 of 23
Landlord, base rental equal to I 5(rX, of the then -current Rent. No holding over by Tenant, whether
with or without coilsent of Landlord, shall operate to extend this Lease except as otherwise
expressly provided under the provisions of this Lease, and this section shall not be construed as
consent far Tenant to retail possession of the Leased Property.
8. tnte rfe re nee.
A. Tenant shall not use the Property in any way that interferes with tile use of
the Property by Landlord, or by tenants of Landlord holding rights to the Property on the Effective
Date of this Lease; provided, however. that Landlord hereby acknowledges that Tenant's use of
the Property for Tenant's Permitted Use shall not constitute an impermissible interference by
Tenant, Furthermore, Tenant shall operate the Antenna Facilities in a manner that will not cause
interference to Landlord and other tenants or licensees of the Property. Landlord shall have the
rot to terminate this Lease if Tenant's Antenna Facilities interferes with LandionTs equipment or
the equipment or use of any other third -party tenant, provided that such third -patty's equipment is
installed as of the EtYcctivc Date, and provided that Tenant has been unable to eliminate such
interference (excepting intermittent testing done by Tenant in an effort to remediate such
inteiference) within thirty (30) days after receipt of notice of such interference from Landlord. If
Landlord terminates this Lease pursuant to this sccti(,Hl, Tenant shall invilediately remove all of its
equipment and personal property front the Property. All. operations by Tenant shall be in
compliance with all Federal Communications Commission (the -FCC-) requirements.
B, Subsequent to the Effective Date, Landlord shall not, and shall not permit
its tenants or licensees to, install new equiprilent on the Property or property contiguous thereto
owned or controlled by Landlord, if such equipment is likely to cause interference with Tcnanfs
operations. In the event such interference occurs, Landlord shall, upon being advised of such
interference by the Tenant, notify the third party of such interference. In the event Landlord fails
to comply with this paragraph within 60 days of receipt of such notice by Tenant, Tenant may
terminate this Lease and/or pursue any other remedies available under this Lease. at law. andfor at
equity.
9. Improvements; Utilities; Access.
A. Tenant shall have the right. at its expense, w install. construct, maintain,
modify, supplement, replace and upgrade a cornmunications facility oil the Property, which may
inckidc radio transmitting and reccivinig antennas, eqtuprilent shchers and other improvcrilents
relating thereto (collectively the "Antenna Facilities") provided that the Ground Space and the
Tower Space occupied remains tile same or less. All work by Tcnant shall be peffornled in
compliance wkh applicable laws and ordinances.. Tenant is not authorized to contract for or on
behalf of Landlord for work on, or the ftirnishing of materials to. the, Property or any other part of
the Property, and Tenant shall discharge of record by payincriL bond or otherwrisc. within, 10
business days subsequent to the date of its receipt of notice thereof from Landlord, any mechanic's
or construction licils tiled against tile Property for work or materials claimed to have been
famished at the instance of Tenant.
127501)82.8 ILV#r I
Instr# 118055280 , Page 11 of 23
B. Tenant shall, at Tenant's expense, keep and n-mintain the Leased Property in
comi-nercially reasonable condition and repair during the term of this Lease. The Antenna
Facilities shall reniabi the exclusive property of Tenant. and Tenant ,,hall have the right to remove
all or any portion of the Antenna Facilities at any timc during the term of this Lease. Within a
reasonable period following the expiration of the tens of this Lease (as such terns may be renewed
from tinie to tune in accordance with this Lease), Tenant shall remove the Antenna Facilities and
return the teased Property to Landlord in visibly the condition existing as of the EtTective Date,
reasonable wear anti tear excepted.
C. Tenant shall. at Tenant's expense, cause the utilities servicing the Antenna
Facilities to be separately rnetered. Further. Tenant shall have the right. at Tenant's cxpcnsc, to
install or niliprove utilities serving the Property OvOuding, but not ignited to, the installation of
emergency power generators).
D. Landlord shall provide Tenant with 24 hour. 7-day per week access to the
Property for the installation, maintenance and operation of the Antenna Facilities and any utilities
serving the Property.
E, As between Landlord and Tenant, Tenant shall be fully responsible, for all
acts and omissions of its subcontractors and of persons directly or indirectly employed by its
subcontractors. Nothing herein shall create any contractual relationship between any subcontractor
and Landlord or any obligation on the: pail of Landlord to pay or see the payment of any nioneys
due to any subcontractor.
F. All perniks and licenses required by federal, state, local or county laws,
rules and regulations ricccssarytor the execution of any work undcrtaken by Tenant pursuant to
this Lease shall be secured and paid for by Tenant or Tenant's contractors or subcontractors.
Tenant and Landlord agree that the failure of the Lease to address a particular pennit, condition,
fee, terns or restriction shall not relieve Tenant of the necessity of complying with the law
governing saki pennitting requirements. conditions, fees, terms or restrictions. Landlord agrees to
cooperate with Tenant to obtain such permits and licenses.
10, Defaults Termination and Other Remedies. This Lease may be terniinated,
without penalty, as hollows:
A. by Landlord if Tenant fails to pay any rental, fees, or other charge.,; due
tinder this Lease and such failure is not cured within ten (10) days after Tenant's receipt of written
notice of default from Landk)rd (a -Monetary Debult').
B. by either Party if the other Party defaults (other than a defauk described in
Section IO.A above) by failing to keep, perforrn, or observe any non -monetary terns, covenant. or
condition (if this Lease that is to be kept, perforined, or observed by such Party, and such Party
fails to cure such default within thirty (30,) day,-, after written notice of such default is received by
the defaulting Party froni the, non-defaultitig Party (a -Non-monetary Default," and together with
a Monetary Default. collectively. a "Debult"); provided, however, that if such default is capable
4
WNW,
Instr# 118055280 , Page 12 of 23
of being cured, but not within such 30-day period, this Lease may not be terminated so long as the
dcfauking Party commences appropriate curative action within such 30-day period aixt, thereafter
diligently prosecutes such cure to completion as promptly as possible;
C. by Tenant on thirty (30) days prior written notice if it is unable to obtain,
maintain or otherwise torfleits or cancels any license, permit or governmental approval necessary
for the construction or operation of the Antenna Facilities. or Tenant's actual or intended use of the
Property-. and
D. by Tenant on thirty (30) days prior written notice if Tenant dctennincs, in,
its reasonable discretion exercised in good faith, that based on (i) technokygy. (ii.) interference with
use of the Property resulting frorn the acts of any third party, an act of CJK)d OT from other nature I
forces or (iii) changes in system design or system usage patterns, Tenant's use of the Antenna
Facilities (as the same may have been mod ifted from time to timc) is no longer consistent with the
optimal operation of Tenant's commuriication system or such continued use would be
commercially unrcasonabIc.
E. It is the intent of the Parties that Tenant's Antenna Facilities shall not
constitute a fixture, Upon termirmlion of this Lease, this Lease shall become mill and void, and
neither Party shall have any further rights or duties hereunder, except as expressly provided in this
Lease, and (i) any monies owed by either Party to the other up to the date of tennination shall be
paid withiii 30 days of the termination date, (ii) Tenant may remove all of its Antenna Facilities.
and (iii) those ten ns of this Lease that should survive As expiration or terminatk)n shall survive.
including, without limitation, any indernnification ol-4igatknis.
F. Notwithstanding the foregoing, upon a Default, the non -defaulting Party
may, at its option, perform the defaultin Party's duty or obligation and the costs and expenses of
9
any such performance by the non -defaulting Party shall be due and payable by tile defaulting Party
upon invoice therefor. further, the non -defaulting Party may pursue any remedy riow or hereafter
available to it under the laws of the State of Florida,
11. Casualty and Condemnation.
A. If any part of the Antenna Facilities is damaged by fire or other casualty so
as to prevent the continuation of Tenant's Permitted Use in a commcrcially reasonable manner,
then Tenant may tcrii-iinate this Lease by providing written Mice to Landlord. which tcrininat ion
shall be effective as of the date of such damage aml/or destruction. Upon such termination. Tenant
shall be entitled to collect all insurance proceeds payable to Tenant on account thereof and to be
reimbursed for any prepaid Rent.
B. If any part of the Property or the Antenna FacRies is taken by eminent
domain, or by a deed in ficu of condenination, so as to prevent the continuation of Tenant's
Permitted Use in a commercially reasonable manner, then Tenant may terminate this Lease by
providing written notice to Landbrd, which termination -shall be effective as of the date of the
vesting of title in such taking. Upon such termination, Tenant shall be entitled to be reimbursed
5
J275070N2A 311VIV
Instr# 118055280 , Page 13 of 23
for any prepaid rent. Landlord and Tenant shall each be entitled to pursue their own separate
awards with respect to any taking by eminent domain.
C. Landlord shall not be WbIc to Tenant for darnage- to Tenant-.; property or
improvements front any cause whatsoever unless caused by the negligence or intentional acts or
omissions of Landlord, its agents or employees. Tenant shall have the right, however, to. claim and
recover its damages from any third party other than Landlord who may be liable for such damages.
12. Taxes. Tenant shall pay to Landlord any applicable sales tax on the Rent, atyJ
Landlord shall be responsible for rernitting, such tax to the appropriate government entities. Tenant
shall pay any personal and real property taxes assessed on, special assessment-, or any portion of
such taxes attributable to, the Antenna Facilities. Landlords Federal Tax ID # is 59-1039551
13. Insurance and Subrogation.
A. Tenant will provide Commercial General Liability Insurance with alter
occurrence Wit of $I.O(X).O(X) and name Landlord as an additional insured. Neither Party shall
be liable- to the other (or it) the other's successors or assigns) for any loss or damage caused by fire
or any of the risks crituncratcd in a standard "All Risk" insurance policy, and, in the event of such
insured loss, neither Part?s insurance company shall have a subrogated claim against the other.
Each Party shall obtain from its insurers under all policies of fire, theft and other casualty insurance
covering the Property or any portion thereof, improvements thereon or operations therein, a waiver
of all rights of subrogation which the insurer might have against the other Party.
B. Tenant shall procure and maintain Workers* Compensation Insurance, if
required, for the duration of the Lease. in full compliance with the State of Flork las Workers'
Compensation Law.
C. Tenant shall not commence work under this Lease until it has obtained all
insurance required under this Scctkm 13 and such insurance lass been submitted to Landlord,
naming Landlord as additional insured if required by Landlord, Certificate of such instirance shall
be filed with Landkird prior to commencernerit (if any work hereunder.
14, Hold Harmless. Tenant shall indemnify and hold Landlord harmless from and
defend against any and all action, injury, loss, damage or liability (or any claim in respect of the
foregoing), costs or expenses (including reasonable attorneys` fcci and court cost--,) arising from or
relating to'Tenant's, or any of Tenant's employees, agents, contractors or other persons acting on
behalf of Tenant: (i) use of the Leased Property, including but not limited to its inspections during
the Due Diligence Period the installation, use, maintenance. repair or removal of the Antenna
Facilities.; or (ii) any breach or non-fulfillnicrit of any covenant, agrecincrit or obligation to be
performed by Tenant pursuant to this Agi-cement and the transactions contemplated hereby;
pi-oviile(l however, that Tenant's obli , , shall be reduced to the gations under this Section 14 extent
attributable to the negligent or Intentional act or omission of, Landlord, its enipbyees. agents or
independent contractors, The provisions and obligations of this Section 14 shall survive the
expiration or carrier termination of this Lease. Nothing in this Section 14 is intended to nor shall
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Instr# 118055280 , Page 14 of 23
be construed to waive Landlord's rights and irrununities under applicable law or §768.28. Florida
Statutes, as may be amended from time, to time.
1.5. Notices. All notices, requests, demands and other comnitmicaWns hereunder
writing and shall be deemed given if personally delivered or mailed, certified mail. return receipt
requested, or sent by overnight carrier to the following addresses;
To Landlord: City of Tamarac
752.5 N.W. 88th Avenue
Tamarac, Florida 33321-2401
ATTN: City Manager
With a copy to: City of Tamarac
7525 NW 88 Avenue
Tamarac, FL 33321
ATTN: City Attorney
To Tenant: DISH Wireless L.L.C.
ATTN: Lease Administratkin
5701 South Santa Fe Blvd.
Littleton, CO 80120
16. Limitation of Liability. Except for indernnification pursuant to Section 14. ncklicr
Party shall be liable to the other, or any of their respective agents, representatives, cniployccs or
contr-actors, for any lost revenue, lost profits, loss of technology. rights or services, incidental,
punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of
service arising from, or relating to this Lease, or the use of the Lca%cd Property.
IT Quiet Enjoyment, Title and Author M Landlord represents and warrants that (i)
it has full right, power and authority to execute this Lease and has the "ver tea -Want all fights
hereunder. (R) it has goad. nvArketable and title ricumbcred the -to the Property free and clear of
any liens, mortgages, restrictions or other encumbrances that will interfere with Tenant's Permitted
Use-, (iii) its execution and pci-fornrance of this Lease will not violate any 'laws, ordinances.
covenants, or the provisions of any mortgage, Lease or other agreement binding on Landlord; (iv)
Tenant shall have the quiet enjoyment of the Property, subject to any other existing leases on the
Property. and Tenant shall not be disturbed as long as Tenant is not in Defauk beyond any
applicable grace or cure period-, and (v) if the Property is encumbered by a deed to secure debt.
mortgage or other security interest. Landlord will use its best efficirts to provide promptly to Tenant
a fully signed Subordination, Non-Disturbaiice and Ancimment Agreement in a form acceptable
to Tenant.
18, Environmental Lam. As used herein, the term "Environmental Laws" shall mean
any and all local, state or federal statutes, regulatitins or ordinances pertaining to the environment
or natural resources. As used herein, the term "Hazardous :Substance" shall mean any toxic or
hazardous waste or substance (including. without litnitation, asbestos and petroleum products) that
127S07()R2JN . 31"Ir
Instr# 118055280 , Page 15 of 23
is regnilateJ by Enviroranental Laws, Tenant represents, wan -ants and agrees that it will conduct
its activities on the Property in compliance with all applicable Environmental Laws. Landlord
represents. warrants and agrees that 4 has in the past and will in the future conduct its activities on
the Property in compliance with all applicable Environmental Laws and that the Property is free
,of any Hazardous Substance as of the date of this Lease. Landlord shall be responsible for, and
shall. promptly conduct any investigation and remediation as required by any Environmental Laws
or common law of, all spills or other releases of liazardows Substance. not caused solely by Tenant,
that have occurred or which may occur on the Property or surrounding property owned by
Landlord. Tenant agrees that it will not use, generate, store, or dispose of any Hazardous Materia I
on, under, about. or within the Land in violation of any law or regulation. Landlord represents,
warrants, and agrees (I) that neither Landlord nor, to Landlord's knowled'up. Any third party has
xised, generated, stored or disposed of. or permitted the use . generation, storage or disposal of, any
Hazardous Material on, tinder,, about, or within the Land in. violation of any violation of any law
or regulation, and (2) that Landlord will not, and will not permit any third party to use, generate,
store or dispose of any Hazardous Material on, under, about or within the Land in violation of any
law or regulation. This paragraph shall survive the tenuination of this agreement.
19. AssianmentandSubleasing Tenant rilay assign this Lease and its ri_ghts hereunder
to any person or business entity which is a parent, subsidiary or affiliate of Tenant, controls or is
controlled by or tinder common control with Tenant; is merged or consolidated with Tenant; or
purchases a n-m*)rfty or controlling interest in the ownership or assets of Tenant. Tenant imy not
otherwise assign this Lease without Landlords written consent, which consent shall not be
unrcasmably withheld or delayed. Tenant may not sublease the Leased Property. Any purported
assignment or sublease in violation of this section is void.
20. Successors and AjIlLps. This Lease shall run with the Property and shall be
binding upon and inure to the benefit of the parties, their respective successors. personal
representatives and assigns.
21. Landlord's Lien. Landlord hereby waives any and all lien rights it may have.
statutory or otherwise, concerning the Antenna Facilities or any portion thereof. The Antenna
Facilities shall be deemed personal property for purposes of this Lease, regardless of whether any
portion thereof is deemed real or personal property under applicable law.
22. Misceflaneous:
A. Each Party agrees to furnish to the other, within 45 days after request
('subject to City Conitnission scheduling), such trudiftil estoppel information as the other may
reasonably request. Furthermore, each Party shall cooperate in executing any other documents
(including a Memorandum of Lease, casement agreement, or both) necessary to protect a Party's,
rights hereunder. Neither Party shall record this Lease. but may record the aforementioned
Men-mrandurn of Lease.
B. Each Party represented i n this transaction by a broker, agent or commission
,salesperson shall be fully and excktsivcly responsible for tile payment of any fee, commission or
1217' 5070K2.8 ALV.jr
Instr# 118055280 , Page 16 of 23
other compensation owing to such person. Each Party shall indemnify, defend and hold harmless
the other Party and its affiliates, officers, directors, agents and representatives from and against all
liabilities, damages. claims, costs,, fees and expenses whatsoever (including reasonable attorneys
fees and court costs at trial and all appellate levels ' ) arising in connection with any claim by any
broker, salesman or finder claiming by or under such Party. This provision shall survive the
termination or expiration of this Lease.
C. The Parties acknowledge that a substantial portion of negotiations and
anticipated performance and execution of this Lease occurred or shall occur in the State of Florida.
Any civil action or legal proceeding arising out of or relating to this Lease shall be brought in the
Circa Court of the State of Florida in Broward County. Each Party consents to the jurisdiction
of such court in any civil action or legal proceeding, and waives any objection to the laying of
venue of any such civil action or legal proceeding in such court. Service of any court paper may
be effected ori such Party by moilas provided in this Lease; or in such other nuinner as may be
provided under applicable laws, rules of procedure or local rules. The Parties agree that this Lease
shall be governed by the laws of the State of Florida as now and hereafter in force, without giving
effect to any choice of law provisions.
E. This Lease constitutes the entire agreement and understanding of the Parties
with respect to the Property and subject matter hereof. and supersedes all otters, negotiations and
other agreements. There are no representatknis or understandings of any kind not set forth herein,
Any amendment to this Lease must be an writing and executed by both- Parties. In the event any
provision of this Lease is determined by appropriate judicial authority it) be illegal or otherwise
invalid, such provision shall be given its nearest legal meaning or reconstrued as such authority
determines, and t1w remainder of this Lease shall be construed to be in full force and effect.
F. Landlord acknowledges that a Mernoranduni of Agreement in the forni
annexed hereto as Exhibit B will be recorded by Tenant in the official records of the County where
the property is located. In the event the Property is encunilvred by iriowrtgage or deed of trust,
Landlord agrees 0 me ins n file
,rces to obtain and burnish to Tenant a non -disturbance and alt rn nt t i nt for
each such mortgage or deed of trust.
G. Tenant may obtain title insurance on its:interest in the Premises. Landlord
shall cooperate by executing documentation required by the title insurance company.
Ill. In accordance with Florida law, the following notice is hereby given to
Tenant: "RADON GAS; RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS
THAT, 'AIIEN IT HAS ACCUM ULATED IN A BUILDING IN SUFFICIENTQUANTITY,
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." Tenant acknowledges having read the foregoing
notification, and has executed this Lease hilly aware of the aforcincritioncol conditions.
VJ
11VIV
Instr# 118055280 , Page 17 of 23
I. Failure by a party to enforce strict performance of any of the terms or
conditions of this Lease. or to exercise any rights under this Lease. shall not waive those rights.
and that Party shall have the fight to enforce its rights at any time, and take such action as may be
lawful and authorized under this Lease, in law or in.. equity. Except as may be expressly set forth
in this Lease, the exercise by either Part without
y of any of its remedies under this Lease will �e w ut
prejudice to its other remedies under this Lease or otherwise.
J. TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL BY
JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT. OR OTHERWISE, BETWEEN LANDLORD AND
TENANT ARISING OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT,
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED HERETO.
K. Time is of the essence as to each provision of this Lease.
23. Tower Marking and Lighting Reguirentents. Landlord acknowledges that 0.
and not Tenant, shall be responsible for compliance with all Tower marking and lighting
requirements of the Federal Aviation Administration ("FAA") and the FCC, Should Tenant be
cited by either the FCC or FAA because the Tower is not in compliance absent the negligence or
intentional acts or omissions of Tenant or its agents, employees or contractors, and should
Landlord fad to cure the conditions of noncompliance within the time frame allowed by the citing
agency, Tenant may terminate this Agreement inimcdiatcly on notice to Landlord or proceed to
cure the conditions of noncompliance at Landlord's expense, which amounts may be deducted
from the Rent.
24. Compliance with Laws. Landlord represents that the Property and all
improvcnicne; located thereon, arc in compliance with building, lifc/satety. disability, and other
laws. codes and regulations of applicable government authorities. Tenant will comply with all
applicable laws relating to its possession and use of the Property.
25. Public Records Landlord is a public agency subject to Chapter 119, Florida
Statutes. The Tenant shall comply with Florida'.-, Public Records Law. Specifically, to the extent
applicable under the law. Tenant shall:
A. Keep Land maintain public records required by Landlord in order to perforni
the service.
B. Upon request from Landlord, provide the public agency with a copy of the
requested records or allow the records to be inspected or copied within a reasonable time at no cost
to the Landlord.
C. Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by law for the
duration of the contract term and following completion of the Agreement and an-v renewals thereof
if Tenant does not, transfer the records to the Landlord.
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Instr# 118055280 , Page 18 of 23
D. Upon termination of the Lease, for any reason hereunder, transfer, at no cost
to the Landlord, all public records in possession of Tenant, or keep and maintain public records
required by the Landlord to perform the service. If Tenant transfer.-, all public records to the
Landlord upon termination of the Lease, Tenant shall destroy any duplicate. public records that am
exempt or confidential and exempt from public records disclosure requirements. If Tenant keeps
and mainta its public records upon tennittatian of the Lease, Tenant shall meet all applicable
requirements for retaining public records. All records -stored electronically must be provided to
Landlord, upon request from Landlord's custodian of public records in a format that is compatible
with the infortnation technology systems of the Landk)rd,
E. During the Initial Term of this Lease and any Renewal Term, Tenant shall
twintain all books, reports and records in accordance with generally accepted accounting practices
and standards for records directly related to this contract.
26. Public Records Custodian. IF TENANT HAS QUESTIONS REGARDING
THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO TENANT'S DUTY
TO PROVIDE PUBLIC RECORDS RELATING TO THIS LEASE, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS AT:
CITY CLERK
7525 NW 88TH AVENUE
ROOM 101
TAMARAC, FL 33321
(954)597-3505
CITYCLERK0 TAMARAC.ORCP
27. Scrutinized Companies. By execution of this Lease, in accordance with the
requkements of F.S. 287,135 and F.S. 215.473, Tenant certifies that Tenant is not participating in
a boycott of Israel. Tenant further certifies that Tenant is not on the Scrutinized Companies that
Boycott Israel list, not on the Scrutinized Comixinies with Activities in Sudan List, and not on the
Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, nor has Tenant
been engaged in business operations in Syria. Subject to limited exccptions provided in state law,
the Landlord will not contract for the provision of goods or services with any scrutinized company
referred to above. Submitting, a false certification shall be deemed a material breach of contract.
The Landlord shall provide notice, in writing. to Tenant of the Landlord's determination
concerning the false certification. Tenant shall have five (5) days from receipt of notice to refute
the false certification allcgation. If such false certification is discovered during the active contract
term, Tenant shall have ninety (90) days following receipt of the notice it) respond in writing and
demonstrate that the determination of false certification was n-mcle in error. If Tenant does not
demonstrate that Landk)rd*s deten-nination of false certification was made in error then the
Landlord shall have the right to ten-nittatc the contract and seek civil remcdics pursuant to Section
287. 135, Florida Statutes, as amended from time to time.
29, Counterparts. This Lease may be executed in counterparts, each of which
shall be deerned an migina 1, but all of which together shall constitute one and the same instrument.
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1.275,07t)K'A .if'Njr
Instr# 118055280 , Page 19 of 23
IN WITNESS WHEREOF, the Parties have camsed tyre duly authorized representatives to execute
this Agreement as of t,�e Effective Date.
LANDLORD. - TENANT.
The Gih, of Tamarac, DISH WIRELESS L.L.C..
Florklaf municipal corporation
Its: t'
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Instr# 118055280 , Page 20 of 23
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Instr# 118055280 , Page 21 of 23
Instr# 118055280 , Page 22 of 23
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Instr# 118055280 , Page 23 of 23, End of Document