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HomeMy WebLinkAboutCity of Tamarac Resolution R-2011-137Temp. Reso # 12127 November 21, 2011 Page 1 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2011- 137 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, APPROVING THE FIFTH AMENDMENT AND AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE FIFTH AMENDMENT TO AMEND SECTION 2 OF THE FOURTH AMENDMENT TO THE SITE LEASE AGREEMENT WITH TOWERCO ASSETS LLC FOR THE CELL TOWER SITE LOCATED AT 9101 NW 57T" STREET IN TAMARAC, PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on July 19, 2006 the City of Tamarac closed on the purchase of the property located at 9101 NW 57th Street, Tamarac, Florida 33351 from Tamarac Jewish Center, and WHEREAS, the property contained a cell site with a stealth tower (flagpole) and ground facilities constructed by Nextel; and WHEREAS, The City, by its acquisition of this property, took over the existing site lease agreement between Tamarac Jewish Center and Nextel; and WHEREAS, on September 23, 2008, Nextel as the lease holder and the owner of the tower executed Assignment and Assumption of Ground Lease with TowerCo Assets LLC (TowerCo); and WHEREAS, on April 13, 2011, City Commission approved Fourth Amendment attached hereto as Exhibit 1 to the Site Lease Agreement with TowerCo to increase the ground space by about 680 square feet and to increase the monthly rent by $1,000; and WHEREAS, the potential tenant for the additional space at that time, AT&T Wireless elected not to enter into a sublease agreement with TowerCo; and WHEREAS, MetroPCS Florida, LLC (MetroPCS) now desire to enter into a sublease Temp. Reso # 12127 November 21, 2011 Page 2 agreement with TowerCo for the additional space on the said property; and WHEREAS, TowerCo, now propose Fifth Amendment to amend the Fourth Amendment to the Site Lease Agreement to replace any references to AT&T and AT&T Sublease Fee with MetroPCS and MetroPCS Sublease Fee; and and WHEREAS, the financial terms of the existing Site Lease Agreement remain the same; WHEREAS, the Director of IT recommends approval of the amendment; and WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be in the best interests of the citizens and residents of the City of Tamarac to approve and to authorize the appropriate City Officials to execute Fifth Amendment attached hereto as Exhibit 2 to Site Lease Agreement with TowerCo to amend Section 2 of the Fourth Amendment to replace any references to AT&T and AT&T Sublease Fee with MetroPCS and MetroPCS Sublease Fee. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA: SECTION 1: 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. All exhibits referenced herein are incorporated and made a specific part of this resolution. SECTION 2: The City Commission approves the Fifth Amendment and the appropriate City Officials are hereby authorized to execute the Fifth Amendment to the Site Lease Agreement with TowerCo to replace Section 2 of the Fourth Amendment replacing all references to AT&T and the AT&T Sublease fee with MetroPCS and the MetroPCS Sublease fee. SECTION 3: The financial terms of the Site Lease Agreement remain the same. SECTION 4: The appropriate City Officials are hereby authorized to sign all necessary permit applications on behalf of the City as property owner so this amendment can be processed. Temp. Reso # 12127 November 21, 2011 Page 3 SECTION 5: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. SECTION 6: 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. SECTION 7: This Resolution shall become effective immediately upon its passage and adoption. PASSED, ADOPTED AND APPROVED this /� day of I)Vajnl�, 2011. ATTEST: PETER M. J. RIOHARDSON, CRIV CITY CLERK. oV_'TA MA • ��C �`oo s ESiASL�SN : ® _ W . A 963 ram. :ce ®'•. -Al-S.: �9 I HEREBY CERTIFY THAT I HAVE APPROVED THIS RESOLUTION AS TO FORM. olr�/ All, , , �,1,-X-k' SAMUEL S. GORE CITY ATTORNEY AA�A �L r 3L . I PAMELA BUSHNEL Mayor RECORD OF COMMISSION VOTE: MAYOR BUSHNELL DIST 1: COMM. SWENSON DIST 2: COMM GOMEZ DIST 3: V/M GLASSER DIST 4: COMM. DRESSL R� �?Xhlklv Temp. Reso # 12007 March 16, 2011 Page 1 ' CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2011- ,j F A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, APPROVING THE FOURTH AMENDMENT AND AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE FOURTH AMENDMENT TO SITE LEASE AGREEMENT WITH TOWERCO ASSETS LLC TO INCREASE THE GROUND SPACE BY ABOUT 680 SQUARE FEET AT THE CELL TOWER SITE LOCATED AT 9101 NW 57T" STREET IN TAMARAC AND TO INCREASE THE MONTHLY RENT BY $1,000, PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on July 19, 2006 the City of Tamarac closed on the purchase of the property located at 9101 NW 57t' Street, Tamarac, Florida 33351 from Tamarac Jewish Center, and WHEREAS, the property contained a cell site with a stealth tower (flagpole) and ground facilities constructed by Nextel; and WHEREAS, The City, by its acquisition of this property, took over the existing site lease agreement between Tamarac Jewish Center and Nextel; and WHEREAS, on September 23, 2008, Nextel as the lease holder and the owner of the tower executed Assignment and Assumption of Ground Lease attached hereto as Exhibit 6 7 with TowerCo; and WHEREAS, TowerCo, as the current Lessee, proposes this Fourth Amendment to the Site Lease Agreement to increase the ground space by about 680 square feet and to increase the monthly rent by $1,000; and WHEREAS, the financial terms of the existing Site Lease Agreement remain the same; and Temp. Rew # 12007 March 16, 2011 Page 2 WHEREAS, the Director of IT recommends approval of the amendment; and 1 WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be in the best interests of the citizens and residents of the City of Tamarac to authorize the appropriate City Officials to execute Amendment to Memorandum of Agreement attached hereto as Exhibit 7 and Fourth Amendment to Site Lease Agreement with TowerCo to increase the ground lease space by 680 square feet and to increase the monthly rent by $1,000, attached hereto as Exhibit 8. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA: SECTION 1: 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. All exhibits referenced herein are incorporated and made a specific part of this resolution. SECTION 2: The City Commission approves the Fourth Amendment and the appropriate City Officials are hereby authorized to execute Amendment to Memorandum of Agreement and the Fourth Amendment to Site Lease Agreement with TowerCo to increase the ground lease space by 680 square feet and to increase the monthly rent by $1,000. SECTION 3: The financial terms of the Site Lease Agreement remain the same. SECTION 4: The appropriate City Officials are hereby authorized to sign all necessary permit applications on behalf of the City as property owner so this amendment can be processed. Temp. Reso # 12007 March 16, 2011 Page 3 SECTION 5: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. SECTION 6: 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. SECTION 7: This Resolution shall become effective immediately upon its passage and adoption. PASSED, ADOPTED AND APPROVED this 13 day of � �- , 2011. ATTEST: PETER M. J. CITY CLERK. / `0%J1 llIlll/// � O� TA `� •. �. '•� JW .. . gTABLISHED ' _ ..ga • 1963 '•. SEAL O •,id COUtAl���`� 1 � I HEREBY CERTIF�YITHAT I HAVE APPROVED THIS RESOLUTION AS TO FORM. SAMUE S. GOREN Uva CITY ATTORNEY V PAMELA BUSHNELL MAYOR RECORD OF COMMISSION VOTE: MAYOR BUSHNELL i- DIST 1: COMM. SWENS N ;4,:��- DIST 2: V/M GOMEZ --- DIST 3: COMM. GLAS R��-- DIST 4: COMM. DRESSLER 2 ----7 ---' INSTR # i0818752s OR 9K 45734 pgM 1457 -1455 RECORDED 10107/08 o9:13:5s BROW40D COUNTY COMMISSION DEPUTY CLER)(3330 04, 9 Pas This Instrument Prepared By TowerCo Acquisition LLC 5000 Valleystone Drive Cary, North Carolina 27519 ASS19Nl11ENT AND ASR@4PTIP GRQUND LEASE THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE (" ent") is made, entered into and effective as of this Q'o day of September, 2008 ("Transfer Date"), by Nextel South Corp., a Georgia corporation, having an address at 6391 Sprint Parkway, Mailstop KSOPHT0101-7.2650, Overland Park, Kansas 66251-2650 (" s' r"), to Tower Entity 10 LLC, a Delaware limited liability company, having an address at 6391 Sprint Parkway, Mailstop KSOPHT0101-z2650, Overland Park, Kansas 66251-2650 (" ssi ").The notice address for the Assignee shall be; Tower Entity 10 LLC c/o TowerCo Acquisition LLC, 5000 Valleystone Drive, Cary, North Carolina 27519. Preliminary Statement: Pursuant to that certain Purchase and Sale Agreement dated as of July 23, 2008 (as amended, modified and supplemented from time to time, the "Pure e�A ent"), by and between TowerCo Acquisition LLC, the parties identified as sellers therein (including Assignor), Sprint Spectrum L.P., as agent for such sellers and the "Tower Entities" (including Assignee) that become parties thereto, Assignor has, among other things, agreed to assign all its right, title and interest in and to the Ground Lease (as defined on EXb&it "A") to Assignee and to assign, transfer and convey to Assignee its right, title and interest in all Towers and Tower Related Buildings and Equipment located on the land demised under the Ground Lease (as such land is further described in Exhibit B (as so described, the "Real Property")). All capitalized terms not otherwise defined in this Assignment shall have the meanings ascribed thereto in the Purchase Agreement. In consideration of the mutual covenants contained in this Assignment, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor and Assignee hereby agree as follows: l . ASSIGNMENT. As of the Transfer Date, Assignor for good and valuable consideration as recited in the Purchase Agreement, the receipt and sufficiency of which are hereby acknowledged, does hereby convey, assign, contribute and transfer all of its right, title, and interest in, to and under the Ground Lease, and the leasehold, license or other interest created thereunder, to Assignee and its successors and assigns. 2. ACCEPTANCE OF ASSIGNMENT. Assignee as of the Transfer Date, hereby accepts the foregoing assignment of the Ground Lease and assumes all of the Assumed Liabilities arising under or pursuant to the Ground Lease. Il37%/a?5 FL2075/FL2693 TAMARAC CENTRAI. 3. APP AN SE T IMPROVEMENTS. Assignor hereby grants, bargains, conveys, contributes and transfers to Assignee, its successors and assigns forever, all of Assignor's right, title and interest (subject to Permitted Liens) in and to (i) all appurtenant property and rights relating to the Real Property, (ii) all easements and rights of way benefiting the Real Property, (iii) all Towers located on the Real Property and (iv) all Tower Related Buildings and Equipment located on the Real Property and all other Tower Related Assets located on or relating to the Real Property; excluding, in the case of clauses (i) through (iv), any and all Excluded Assets. 4. 13JNDING EFFECT. This Assignment will be binding on and inure to the benefit of the parties herein, their heirs, executors, administrators, successors -in -interest and assigns. 5. GOVMING LAW. This Assignment and its validity, construction and performance will be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to principles of conflicts of laws, except to the extent mandatorily governed by the laws of the state in which the Real Property is located. 6. COUNTERPARTS. This Assignment may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. 7. PURCHASE AGREEMENT. This Assignment is intended to implement the provisions of the Purchase Agreement and shall not be construed to enhance, extend or limit the rights or obligations of Assignor or Assignee (it being understood that Assignee will not be deemed to be assuming any Excluded Liabilities). No provision of this Assignment shall in any way modify the express provisions (including without limitation the warranties, representations, covenants, agreements, conditions or any of the obligations and indemnifications of the parties hereto with respect to the subject matter of the Purchase Agreement) set forth in the Purchase Agreement. To the extent any provision of this Assignment is inconsistent with the Purchase Agreement, the provisions of the Purchase Agreement shall control. 8. AMEND UM. This Assignment may not be amended, waived or otherwise modified except by a written instrument signed by the parties hereto. THIS ASSIGNMENT has been executed by Assignor and Assignee effective as of the Transfer Date. [Signatures on following pages) F1.2075/FL2683 2 TAMARAC CENTRAL Witnesses: jux-to Print Name: -r'i A 11-- gLa-- State of New York County of New York ASSIGNOR: Nextel South Corp., it Georgia corporation Print Name: Title: Assistant Secretary The foregoing instrument was acknowledged before me this Zeday of September, 2008, by Jda P. BWIW an Assistant Secretary of Nextel South Corp., a Georgia corporation, on behalf of the company. The above -named individual is personally known to me or has produced a drivers license or passport as identification. Notary Public Print Name: My Commission Expires: Way Pubft � of OWyb�k No. AMWW- I IP'L2075/FU693 TAMARAC CENTRAL I Of . Wto� 7F 1 OF �,j VA 0::&� JaA-4-d Print Name: Oq- ASSIGNEE: Tower Entity 10 LLC, a Delaware limited liability company B' Y ' Name: Idw F_Hoch Title: Assistant Secretary State of New York County of New York The foregom" instrument was acknowledged before me this day of September, 2008, by �• an Assistant Secretary of 'Tower Entity 10 LLC, a Delaware limited liability company, on behalf of the company. The above -named individual is personally known to me.or has produced a drivers license or passport as identification. Notary Public Print Name: My Commission Expires: wse AUY Nobw�l��p��7cl *a Yolk 220 1n Y , 2mi FL2075/FL2683 4 TAMARAC CENTRAL EXHIBIT "A" The Ground Lease That certain lease agreement (the "Ground Lease") dated August 21, 2000 by and between City Of Tamarac, as lessor, and Assignor, as lessee, with respect to that certain parcel of real property {"Real PMqUD located in the County of Broward, State of FL, which Real Property is more particularly described on Exhibit "B" attached hereto. The Memorandmn of the Ground Lease is recorded in Book 31967, Page 1913 or as Official Document/InsUv rent Number 101245358, in the Register's office of Broward County, State of FL. After Recording Return To: LandAmerica CLSS Attn: Lisa Robertson 5600 Cox Road Glen Allen, VA 23060 FL2075/FL2683 5 TAMARAC CENTRAL i++toftt: $we Flom. ililt Now, TOWU Ow" o Fmmim Hioktnls. Ea9• . Natld So�MA Gb►P 2201 Lutim MY, Suitt 20 /MaNland, FL 32751. 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AMdd •w mk4 po i m s McLd a}a1� Exhibit 7 Prepared by and after recording return to: Legal Department TowerCo Assets LLC 5000 Valleystone Drive Cary, NC 27519 STATE OF FLORIDA COUNTY OF BROWARD (Recorder's Use Above This Line) Parcel No: 494108 03 0060 AMENDMENT TO MEMORANDUM OF AGREEMENT Document Date: Grantor/Lessor: CITY OF TAMARAC, a Florida municipal corporation Address: 7525 Nw 88Th Avenue, Tamarac, FL 33321-2401 Grantee/Lessee: TOWERCO ASSETS LLC, a Delaware limited liability company Address: 5000 Valleystone Drive, Cary, NC 27519 Legal Description of the Land is attached as Exhibit A. Amended MOL FL207SITamarac Central/Doc#: 822290 V 1 Exhibit 7 AMENDMENT TO MEMORANDUM OF AGREEMENT This Amendment to Memorandum of Agreement is made effective as of the later of the signature dates below between CITY OF TAMARAC, a Florida municipal corporation ("Lessor") and TOWERCO ASSETS LLC, a Delaware limited liability company ("Lessee"). i . Lessor and Lessee (as successor in interest to Nextel South Corp.) are parties to that certain lease agreement dated August 21, 2000 (as amended, the "Lease") for certain real property and easements (collectively the "Premises") which are a portion of that real property owned by Lessor located in the City of Tamarac, County of Broward, State of Florida (the "Land"). 2. A Memorandum of the Lease was recorded on August 10, 2001 as Instrument Number 101245358 of the official records of Broward County, Florida (the "MOL"). 3. The assignment of the Lease to Lessee was recorded on October 7, 2008 as Instrument Number 108187525 of the official records of Broward County, Florida (the "Assignment"). 4. On September 23, 2008, Tower Entity 10 LLC, the assignee under the Assignment, was acquired by and merged into Lessee. 5. Lessor and Lessee have amended the Lease and desire to amend the MOL to reflect the changes set forth in the Lease amendment. 6. The MOL is amended as follows: a. The square footage of the Premises leased by Lessor to Lessee in Section 1 of the Agreement is hereby amended and increased by approximately Six Hundred Eighty (680) square feet ("Additional Premises") to a total size of approximately One Thousand Four Hundred Eighty (1,480) square feet. The Premises, as increased hereby, is depicted on Exhibit B-1 attached hereto, which Exhibit B-1 shall supplement the existing Exhibit B to the MOL. Lessee shall have the right to survey the Premises, and the survey of the Premises will then become Exhibit B-2, which will be attached hereto and made a part hereof and will control in the event of discrepancies between Exhibit B-1 and/or Exhibit B. 7. In the event of any inconsistencies between the terms of the MOL, as amended by this amendment, and the Lease, the term set forth in the Lease shall control. [SIGNATURES AND ACKNOWLEDGEMENTS BEGIN ON NEXT PAGE] Amended MOL FL2075/ramarac Centml/Dock 822290 V 1 2 Exhibit 7 IN WITNESS WHEREOF, the parties have executed this Amendment to Memorandum of Agreement as of the later of the signature dates below. WITNESSES Print Name: "'AiWw ; Print Name: LESSOR ACKNOWLEDGMENT STATE OF } ss: COUNTY OF 1414 X J) ) The foregoing instrument was acknowled M (c AarG / C. C+ernjec,� CITY OF TAMARAC, a municipality, on known to me or has produced identification) as identification. Notary Public Printed Name: My Commission Expires: 6 1 d-dl 1/ Comma sion # f 51,1 Amended MOL. FL207Vramam CentmVDmA 822290 V1 3 LESSOR: CITY OF TAMARAC, a Florida municipal corporation By: Name: it °� �' C� vvt t Title: ry A Vit -=v- Date: d before me this 1/-1 Y _/ / (date) by (name and title of officer) of behalf of the municipality. He/she is personally - (type of ETINA M. WHEATLEY W CON OSION 0 EE%19 EXPUM; A" 06, 2014 M• bury 2= AM" G< (seal) WITNESSES HBO GM 3, Li .if h� _ LESSEE ACKNOWLEDGMENT STATE OF NORTH CAROLINA ) ) ss: COUNTY OF WAKE ) LESSEE: TOWERCO ASSETS LLC, lil 1\1 Title: VP of Collocation Date: 31 � 1 it Exhibit 7 a Delaware The foregoing instrument was acknowledged before me this ►� `?Kotve,4 I�date) by ! i t Jason Catalini, VP of Collocation of TowerCo Assets LLC, a Delaware limited liability of y, on behal f the limited liability company. He/she is personally known to me. ' ,'lltllt111f!// RT No ary Public C� T A q + Printed Name: o15c�r �, ro r My Commission Expires: Commission # Amended MOL FL2075Pfamarac Ccntm1/Doc#: 822290 V1 4 M + Icy Cam. Expires FMXwry 22. 2012 v +',9 AU800 yam~ 11, : E (seal) Exhibit 7 EXHIBIT A LAND Being a portion of the following described land, situate, lying and being in Broward County, Florida, to wit: Lot 1, Block 3, LYONS INDUSTRIAL PARK, according to the Plat thereof as recorded in Plat Book 71, Page 1B, of the Public Records of Broward County, Florida. SUBJECT to covenants, conditions, restrictions, reservations, limitations, easements and agreements of record, if any. Tax Parcel No. 494108 03 0060 Amended MOL FL2075/Tamarac Central/Dock 822290 V[ EXHIBIT B-1 Premises (see attached) Notes: Exhibit 7 1. This Exhibit may be replaced by a land survey of the Premises once it is received by Lessee. 2. Width and locality of access road shall be the width required by the applicable governmental authorities and utility providers, including police and fire departments. Amended MOL FL2075/7a=mc Centmi/Doc#: 822290 V 1 6 y a 08 000 t g :,c rn 000 k H �� ra tit � I V+ m rp CL n k �� to Z �;n z �1 I o z L _J Hx t23 Go z y ca > I r-gg 0 r °z d °z a zo b zz � x o ' d r k cn zo o o y _n�I 0 n � 0 Fy �! tr z fi% ^ ?; IQ 1 rx CD r 2 J r C] N ozz no z o Ln ZyCN z� r� �9 -Q exwm IT -S FOURTH AMENDMENT TO COMMUNICATIONS SITE LEASE AGREEMENT (GROUND) THIS FOURTH AMENDMENT TO COMMUNICATIONS SITE LEASE AGREEMENT (GROUND) ("Amendment") is entered into as of the later of the signature dates below by and between CITY OF TAMARAC, a Florida municipal corporation ("Lessor") and TOWERCO ASSETS LLC, a Delaware limited liability company ("Lessee"). RECITALS A. Lessor (successor in interest to Tamarac Jewish Center) and Lessee (successor in interest to Nextel South Corp.) are parties to that certain Communications Site Lease Agreement (Ground) dated August 21, 2000, as amended by that certain First Amendment to Communications Site Lease Agreement (Ground) dated March 2, 2001, as further amended by that certain Second Amendment to Communications Site Lease Agreement (Ground) dated September 5, 2001, as further amended by that certain Third Amendment to Communications Site Lease Agreement (Ground) dated January 21, 2004 (as amended, the "Agreement"), for the Premises, which are a portion of the Land located in the City of Tamarac, County of Broward, State of Florida, as more particularly described in the Agreement. B. Lessee desires to increase the size of the Premises and Lessor agrees to grant such additional Premises space to Lessee, all in accordance with the terms and conditions as set forth below. NOW, THEREFORE, for and in consideration of the promises and mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree to amend the Agreement as follows: I. Premises. The square footage of the Premises leased by Lessor to Lessee in Section 1 of the Agreement is hereby amended and increased by approximately Six Hundred Eighty (680) square feet ("Additional Premises") to a total size of approximately One Thousand Four Hundred Eighty (1,480) square feet. The Premises, as increased hereby, is depicted on Exhibit B-I attached hereto, which Exhibit B-1 shall supplement the existing Amended Exhibit B to the Agreement. Lessee shall have the right to survey the Premises, and the survey of the Premises will then become Exhibit B-2, which will be attached hereto and made a part hereof and will control in the event of discrepancies between Exhibit B-1 and/or Amended Exhibit B. Lessor agrees to promptly execute and deliver an amended Memorandum of the Agreement in recordable form containing the new legal descriptions of the Premises if so requested by Lessee. 2. Rent Rent shall be increased by the sum of One Thousand Dollars and No Cents ($1,000.00) per month (the "AT&T Sublease Fee") commencing on the first day of the month following commencement of construction of communications facilities by Lessee or Lessee's sublessee, New Cingular Wireless PCS, LLC, or one of its affiliates, successors or assigns ("AT&T") on the Additional Premises and continuing through the term of the Lessee's sublease with AT&T (as may be amended or modified, the "AT&T Sublease"). The AT&T Sublease Fee shall be payable in the same manner as the Rent, including the incremental increases in Rent set Fourth Amendment FL2075/i'amarac Central/Dock 822263 V t forth in Section 5(b) of the Agreement, provided the AT&T Sublease Fee shall not escalate before February 18, 2012. That portion of the Rent attributable to the AT&T Sublease Fee shall terminate on the date that AT&T's communications facilities are removed from the Additional Premises, and Rent thereafter shall be reduced by an amount equal to the AT&T Sublease Fee as of the date of such expiration or termination. Lessee shall have no obligation to pay that portion of the Rent attributable to the AT&T Sublease Fee unless Lessee actually receives the rent payment due under the AT&T Sublease. 3. Notice. Notwithstanding anything in the Agreement to the contrary, facsimile notices shall not be permitted. The notice addresses set forth in Section 18(d) of the Agreement is hereby deleted and replaced with the following: Lessor: City of Tamarac Attn: Director of Information Technology 7525 NW 881h Avenue Tamarac, FL 33321-2401 Lessee: TowerCo Assets LLC 5000 Valleystone Drive Cary, NC 27519 Attn: Property Management TowerCo ID: FL2075 4. Agreement in Full Force. Except as expressly amended hereby, all terms and conditions of the Agreement shall remain in full force and effect, and, in the event of any inconsistencies between this Amendment and the terms of the Agreement, the terms set forth in this Amendment shall govern and control. The covenants, representations and conditions in the Agreement are mutual and dependent. 5. Estoppel Lessor hereby certifies to Lessee (i) that the Agreement is in full force and effect and has not been amended, modified or supplemented in any respect, either orally or in writing, except for this Amendment and the amendments referenced in this Amendment (if any) and is the only agreement relating to the Premises entered into between the Lessee and Lessor; (ii) the Agreement as amended hereby fully represents the entire agreement between the parties thereto and has not been assigned other than as set forth herein; (iii) there is no existing default on the part of the Lessor or Lessee in any of the terms and conditions thereof and no event has occurred which, with the passing of time or giving of notice, or both, would constitute an event of default or notice of termination of the Agreement; (iv) rent has been paid through and including the date hereof as called for in the Agreement and (v) Lessor does not have any offsets, credits or defenses with respect to the Agreement. b. Recording of Agreement Lessor agrees to promptly execute and deliver to Lessee a memorandum of the Agreement in recordable format upon request of Lessee. 7. Counterparts This Amendment may be executed in one or more counterparts which shall be construed together as one document. Fourth Amendment FL2075/Tamarac Central/Dock 822263 v1 2 8. Defined Term& Unless otherwise defined, all defined terms used in this Amendment shall have the meanings ascribed to them under the Agreement. 9. Successors and Assign& Upon full execution by Lessee and Lessor, this Amendment (i) shall be binding upon and shall inure to the benefit of each of the parties and their respective successors, assigns, receivers and trustees; and (ii) may be modified or amended only by a written agreement executed by each of the parties. 10. Non -Binding Until Fully Executed. This Amendment is for discussion purposes only and does not constitute a formal offer by either party. This Amendment is not and will not be binding on either party until and unless it is fully executed by both parties. 11. Recitals. The recitals at the beginning of this Amendment are incorporated in and made a part of this Amendment. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Fourth Amendment FL2075aamarac CentraUDoc#: 822263 V 1 3 IN WITNESS WHEREOF, the parties have executed this Amendment as of the later of the signature dates below. LESSOR: CITY OF TAMARAC, a Florida municipal corporation By: Name: ./U'PC'6QAC (�.ti u�� Title: Date: LESSEE: TOWERCO ASSETS LLC, a Delaware limited ' bility company By: Jason Catalim Title: Vice President of Collocation Date: 1-7 Fourth Amendment FL20751'ramarac CentmI/Doct 822263 V1 4 EXHIBIT B-1 Premises (see attached) Notes: 1. This Exhibit may be replaced by a land survey of the Premises once it is received by Lessee. 2. Width and locality of access road shall be the width required by the applicable governmental authorities and utility providers, including police and fire departments. Fourth Amendment FL2075/Tamarac Centmi/Doc#: 822263 V 1 5 O 0o t1 OG O zy C R° v e�nVt=J v w v nj $ �, n *-. o z r-. z tr: � C �o cn O � r M V C CTI En r [y'{yYy7 ► � � � 0 a ytj ro j� to O tm L-j c� r d Q to X o ,..0 An -10 Z i � rx r � a 7:ov Ci7 � 1� Z. y 1�a Oo%� g c z M .� n N 4 ZO n <yy H �'_� y cn o, y +rw�w ins wwwar w w�� ww�r rrrr w Am r1k /� /- 2 FIFTH AMENDMENT TO COMMUNICATIONS SITE LEASE AGREEMENT (GROUND) THIS FIFTH AMENDMENT TO COMMUNICATIONS SITE LEASE AGREEMENT (GROUND) ("Fifth Amendment") is entered into as of the later of the signature dates below by and between CITY OF TAMARAC, a Florida municipal corporation ("Lessor") and TOWERCO ASSETS LLC, a Delaware limited liability company ("Lessee"). RECITALS A. Lessor (successor in interest to Tamarac Jewish Center) and Lessee (successor in interest to Nextel South Corp.) are parties to that certain Communications Site Lease Agreement (Ground) (the "Original Agreement") dated August 21, 2000, as amended by that certain First Amendment to Communications Site Lease Agreement (Ground) (the "First Amendment") dated March 2, 2001, as further amended by that certain Second Amendment to Communications Site Lease Agreement (Ground) (the "Second Amendment") dated September 5, 2001, as further amended by that certain Third Amendment to Communications Site Lease Agreement (Ground) (the "Third Amendment") dated January 21, 2004, and as further amended by that certain Fourth Amendment to Communications Site Lease Agreement (Ground) (the "Fourth Amendment") dated April 13, 2011 (the Original Agreement as amended by the First Amendment, as further amended by the Second Amendment, as further amended by the Third Amendment, and as further amended by the Fourth Amendment, the "Agreement"), for the Premises, which are a portion of the Land located in the City of Tamarac, County of Broward, State of Florida, as more particularly described in the Agreement. B. Pursuant to the Fourth Amendment, Lessee acquired Additional Premises in connection with a potential sublease agreement with AT&T. Although AT&T elected not to enter into a sublease with Lessee, MetroPCS Florida, LLC, or one of its affiliates, successors or assigns ("MetroPCS") desires to enter into a sublease (the "MetroPCS Sublease") of the Premises, including the Additional Premises. C. Lessor and Lessee desire to amend Section 2 of the Fourth Amendment to substitute any references to "AT&T" and the "AT&T Sublease Fee" with "MetroPCS" and the "MetroPCS Sublease Fee," as more particularly set forth below. NOW, THEREFORE, for and in consideration of the promises and mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree to amend the Agreement as follows: 1. Rent Section 2 of the Fourth Amendment is hereby amended in its entirety and replaced with the following: Rent shall be increased by the sum of One Thousand Dollars and No Cents ($1,000.00) per month (the "MetroPCS Sublease Fee") commencing on the first day of the month following commencement of construction of communications facilities by Lessee or Lessee's sublessee, MetroPCS Florida, LLC, or one of its FL2075/Tamarac Central/Dock 855122 V 1 1 Fifth Amendment affiliates, successors or assigns ("MetroPCS") on the Additional Premises and continuing through the term of the Lessee's sublease with MetroPCS (as may be amended or modified, the "MetroPCS Sublease"). The MetroPCS Sublease Fee shall be payable in the same manner as the Rent, including the incremental increases in Rent set forth in Section 5(b) of the Agreement, provided the MetroPCS Sublease Fee shall not escalate before February 18, 2011That portion of the Rent attributable to the MetroPCS Sublease Fee shall terminate on the date that MetroPCS's communications facilities are removed from the Additional Premises, and Rent thereafter shall be reduced by an amount equal to the MetroPCS Sublease Fee as of the date of such expiration or termination. Lessee shall have no obligation to pay that portion of the Rent attributable to the MetroPCS Sublease Fee unless Lessee actually receives the rent payment due under the MetroPCS Sublease. 2. Agreement in Full Force. Except as expressly amended hereby, all terms and conditions of the Agreement shall remain in full force and effect, and, in the event of any inconsistencies between this Fifth Amendment and the terms of the Agreement, the terms set forth in this Fifth Amendment shall govern and control. The covenants, representations and conditions in the Agreement are mutual and dependent. 3. Estoppel. Lessor hereby certifies to Lessee (i) that the Agreement is in full force and effect and has not been amended, modified or supplemented in any respect, either orally or in writing, except for this Fifth Amendment and the amendments referenced in this Fifth Amendment (if any) and is the only agreement relating to the Premises entered into between the Lessee and Lessor; (ii) the Agreement as amended hereby fully represents the entire agreement between the parties thereto and has not been assigned other than as set forth herein; (iii) there is no existing default on the part of the Lessor or Lessee in any of the terms and conditions thereof and no event has occurred which, with the passing of time or giving of notice, or both, would constitute an event of default or notice of termination of the Agreement; (iv) rent has been paid through and including the date hereof as called for in the Agreement and (v) Lessor does not have any offsets, credits or defenses with respect to the Agreement. 4. Counterparts. This Fifth Amendment may be executed in one or more counterparts which shall be construed together as one document. 5. Defined Terms. Unless otherwise defined, all defined terms used in this Fifth Amendment shall have the meanings ascribed to them under the Agreement. 6. Successors and Assigns. Upon full execution by Lessee and Lessor, this Fifth Amendment (i) shall be binding upon and shall inure to the benefit of each of the parties and their respective successors, assigns, receivers and trustees; and (ii) may be modified or amended only by a written agreement executed by each of the parties. 7. Non -Binding Until Fully Executed. This Fifth Amendment is for discussion purposes only and does not constitute a formal offer by either party. This Fifth Amendment is not and will not be binding on either party until and unless it is fully executed by both parties. FL2075/ Tamarac Central/Doc#: 855122 VI 2 Fifth Amendment 8. Recitals. The recitals at the beginning of this Fifth Amendment are incorporated in and made a part of this Fifth Amendment. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] FL2075/ramarac Central/Doc#: 855122 V 1 Fifth Amendment IN WITNESS WHEREOF, the parties have executed this Fifth Amendment as of the later of the signature dates below. ATTEST: Peter M. J. Richardson, CRM, CMC CITY CLERK Date I HEREBY CERTIFY I have Approved this Agreement as to form. FL2075/Tamarac Central/Doc#: 855122 V 1 4 FEFi0 > ntentral/Doc#: 855122 VI 1 Fifth Amendment LESSOR: CITY OF TAMARAC, a Florida municipal corporation 0 Name Michael C. Cernech Tit City Manager Date:74 LESSEE: TOWERCO ASSETS LLC, a Delaware limited liabj4ty company M Nan-id'Aason Catalini Title: Vice President of Collocation Date: ij L 2