HomeMy Public PortalAboutWhitaker Comm Comp Lease AgreementLEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made effective as of February 1, 2017
and between Lessor Whitaker Communications Company Inc. whose address is PO
Box Crestview, Florida 32536 (hereinafter "Lessor") and Lessee City of
Crestview whose address is 198 North Wilson Street, Crestview, Florida 32536
(hereinafter "Lessee").
1. PREMISES AND USE: The Lessor does hereby grant, devise and let to the
Lessee and the Lessee does hereby lease and take from the Lessor, for the
term and upon the terms and conditions set forth in this Lease, tower space
as described in Exhibit "B" and located on property as described in Exhibit
"A" attached hereto located at Crestview, Florida, collectively the Premises
(the "Premises").
2. TERM: This Lease shall commence on the 1st day of February 2017 for a term
of 7 years (the initial term) expiring on 1 February 2024. Lessee shall have
the option of renewal for an additional 7-year term. The renewal period will
begin on the same day as the ending date of the Initial Lease period, and shall
be based upon the same covenants, conditions, terms, and agreements in
effect during the Lease term that is ending. Renewal shall be automatic
unless Lessee has notified Lessor in writing of his intention not to renew the
Lease; such notice to be provided by Lessee at least six (6) months prior to
the expiration date of the Initial Term of this Lease.
3. RENT: Lessee shall pay Lessor $1200.00 per month for the first five (5) years
of the lease. A 5% increase at the end of year five (5) shall be in effect and
Lessee shall pay Lessor $1260.00 per month for the next years (2) years of
Initial Lease. Thereafter, an additional increase of 5% shall apply to the rent
rate and Lessee shall pay Lessor $1325.00 per month the 7 years of the
Renewal Lease.
4. SUBORDINATION: This Lease and all rights of Lessee under it are and shall
be subject to and subordinate to the rights of any mortgage holder now or
hereafter having a security interest in the Leased premises or any other
encumbrances Lessor desires to place on the property.
Page 1 of 10
5. INDEMNIFICATION: To the extent not prohibited by law,(Section 768.28,
Florida Statutes) each party ("Indemnified Party") shall indemnify against any
loss, cost, claim, liability, damage, expense (including reasonable attorneys'
fees), or demand asserted by or on behalf of any person, firm, corporation,
or governmental authority to the extent the same arises out of the parties
performing their rights and responsibilities under this Lease and was caused
by the negligence or willful misconduct of the Indemnifying Party, its
employees, agents, or contractors. The Indemnifying Party shall defend with
counsel of its choosing any action or suit brought against the Indemnified
Party for any loss, cost, claim, liability, damage expense, or demand asserted
by or on behalf of any person, firm, corporation or governmental authority
relating to or arising solely out of negligence or willful misconduct of the
Indemnifying Party, its employees, agents, or contractors in the performance
of this agreement. The Indemnified Party shall notify the Indemnifying Party
within 20 days of receiving a claim in writing, of any claims, lawsuits, or
demands for which the Indemnified Party alleges that the Indemnifying Party
is responsible under this paragraph six (6.) The Indemnifying Party shall be
relieved of liability hereunder to the extent it is prejudiced by the
Indemnified Party's failure to give prompt notice.
6. INSTALLATION, REPAIRS AND MAINTENANCE.
a. LESSEE'S OBLIGATIONS: Lessee, at its sole cost and expense, shall be
responsible for installation of, repairs to and maintenance of its
equipment or its improvements located on the Premises and for any
damage it may cause to the Premises or other property of Lessor,
reasonable wear and tear excepted. Lessee shall maintain the
Premises in accordance with reasonable engineering standards and
shall conform all improvements constructed upon Premises by the
Lessee to federal, state or local regulations and standards.
b. CONCURRENT USE: The Lessor shall have the right to continue its use
and occupancy of the Premises for the operation of its business. The
parties mutually agree to cooperate with each other and other tenants
in their common use and occupancy of the Premises.
Page 2 of 10
c. Lessor agrees that Lessee shall use Lessor's structure on site to house
Lessee's equipment. Lessor agrees to provide emergency power and
utilities to the site. Fees for that are included in the monthly rent rate.
Lessor agrees that Lessee may mount necessary antennas and cabling
to support the Motorola Turbo radio system at the cost of City of
Crestview.
d. The Lessee agrees to notify the Lessor of any work to be done by the
City or the City Contractor at the lease site as soon as possible. The
Lessor grants the City access to the site and building housing City
equipment for maintenance and emergency repair.
7. COMPLIANCE WITH LAWS: The parties agree to comply with all laws,
regulations and enactments of any governmental authority relating to the
Premises, and to hold the other harmless from all consequences for any
failure to do so. It is expressly understood that Lessee is solely responsible
for all approvals from any and all governmental authorities, whether they be
Federal, State or Local for Lessee's use of equipment on Lessor's property.
8. DAMAGE TO PREMISES: In the event the Premises are totally destroyed by
fire or other casualty during the term or any extension or renewal hereof,
Lessee may, within forty-five (45) days of the casualty, cancel this Lease,
effective as of the date of the casualty, by giving notice in writing to the
Lessor. In the event that the Premises are partially destroyed by fire or other
casualty and cannot be repaired and restored within thirty (30) days from
the date of the casualty, then the Lessee may cancel or terminate this Lease,
effective as of the date of casualty, by giving fifteen (15) days' notice in
writing to the Lessor. In either event, there shall be no further obligation
hereunder one to the other, except for the payment of the rental to the date
of the casualty loss.
9. INTERFERENCE: Lessee shall use the Premises only for the operation of a
communications site for the reception and origination of formally
coordinated wireless radio signals. Even so, it is expressly understood that
this tower site is first, and foremost, a wireless telephone base station and
microwave radio site, and as such, that the rights and privileges of all parties
at this tower site are secondary to those rights and privileges of the Lessor.
Page 3 of 10
Accordingly, the parties hereto recognize the possibility that Lessee's use of
the Premises, for the provision of communications service, may cause
interference with the transmission of Lessor's service. It is expressly
understood by the parties that absolutely no interference, no matter how
minimal, is acceptable to the service provided by the Lessor. Therefore, if,
after Lessee's communications system is operational, Lessor discovers any
interference or difficulty with its service transmission or reception, Lessor
shall promptly notify Lessee of the same. Upon Lessee's receipt of such
notification, Lessee shall discontinue its transmission of communications
service from the Premises until the interference is corrected. Lessee shall
operate its equipment in such a manner, that it will not cause technical
interference to Lessor or any other Lessee of the premises with a tenancy
which predates the effective date of this lease.
10.ENVIROMENTAL: Lessee agrees that it will not use, generate, store or
dispose of any hazardous materials on, under, about or within the Premises.
Lessor represents, warrants and agrees (1) that neither Lessor nor, to
Lessor's knowledge, any third party has used, generated, stored or disposed
of, or permitted the use, generation, storage or disposal of, any hazardous
material on, under, about or within the Premises in violation of any law or
regulation and (2) that Lessor 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 Premises in violation of any law or regulation. Lessor and Lessee
each agree to defend, indemnify and hold harmless the others partners,
affiliates, agent and employees against any and all losses, liabilities, claims
and/or costs (including reasonable attorney fees and costs) arising from any
breach of any representation, warranty or agreement contained in this
paragraph.
11.ASSIGNMENT: Lessee shall not assign or sublease its rights under this Lease
to a non -affiliate of Lessee without prior written consent of Lessor, which
consent shall not be unreasonably withheld. Lessee shall have the right to
assign its rights under this Lease to an affiliate of Lessee without the prior
written consent of Lessor but shall notify Lessor of any assignment to an
affiliate promptly. For the purposes of this Lease, "Affiliate of Lessee" means
Page 4 of 10
an entity in which Lessee owns fifty-one percent (51%) or more interest and
over which Lessee has maintained control. All other parties to which Lessee's
rights under this Lease may be assigned or subleased shall, for purposes of
this Lease, deemed to be a non -affiliate of Lessee. As provided in paragraph
3 of this Lease, Lessor shall have the option to increase the rent if an
assignment or sublease of Lessee's rights under this Lease is made to a non -
affiliate of Lessee.
12.DEFAULT IN PAYMENT OF RENT: If any rent required by this Lease is not paid
when due and continues for ten (10) days after written notice from Lessor,
Lessor will have the option to:
a. Terminate this Lease, resume possession of the Property, and recover
immediately from Lessee the difference between the rent specified in the
Lease and the fair rental value of the property, for the remainder of the
term, reduced to present worth; or
b. Resume possession and re -lease or rent the property for the remainder
of the term for the account of Lessee and recover from Lessee at the end
of the term or at the time each payment of rent comes due under this
Lease, whichever Lessor may choose, the difference between the rent
specified in the Lease and the rent received on the re -leasing or renting.
13.DEFAULTS OTHER THAN RENT: If either Lessor or Lessee fails to perform or
breaches any agreement in this Lease other than the agreement of Lessee to
pay rent, and this failure or breach continues for ten(10) days after a written
notice specifying the required performance has been given to the party
failing to perform, (a) the party giving notice may institute action in a court
of competent jurisdiction to terminate this Lease or to complete
performance of the agreement, and the losing party in that litigation shall
pay the prevailing party all expenses of the litigation, including reasonable
attorneys' fees; or (b) Lessor or Lessee may, after thirty (30) days' written
notice to the other, comply with the agreement or correct any such breach,
and that compliance shall be payable on demand by the party who breached
the agreement.
Page 5 of 10
14.MEMORANDUM OF LEASE: Upon request by Lessee, Lessor shall execute a
memorandum or short form of Lease. Lessee, at its cost, may record this
memorandum.
15.ADDRESSES FOR PAYMENT AND NOTICES: Rent payments and noticed to
Lessor shall be mailed or delivered to the address set forth on the first page
of this Lease, unless Lessor advised Lessee differently in writing. Notices to
either party shall be sent by certified mail, return receipt requested.
16.CAPTIONS: The captions and paragraphs or letters appearing in this Lease
are inserted only as a matter of convenience and in no way define, limit,
construe, or describe the scope or intent of the sections or articles of this
lease in any way.
17.ENTIRE AGREEMENT: This Lease sets forth all the promises, agreements,
conditions, and understandings between Lessor and Lessee relative to the
leased premises. There are no other promises, agreements, conditions or
understandings, either oral or written, between them. No subsequent
alteration, amendment, change or addition to this Lease will be binding on
Lessor or Lessee unless in writing and signed by them and made a part of this
Lease by direct reference.
18.FLORIDA LAW: This Lease will be governed by the laws of the State of
Florida, as to both interpretations and performance. Any litigation between
the parties arising out of this Lease shall be brought, maintained and pursued
only in appropriate state courts of the State of Florida; and the parties each
hereby waive and release any and all rights and options which they, or either
of them, have or might have to bring or maintain any such litigation or action
in the federal court system of the United States or in any United States
Federal District Court. Venue of any such litigation between the parties shall
lie and be only in the appropriate state courts of the State of Florida's First
Judicial Circuit in and for Okaloosa County, Florida. The parties consent and
submit to the jurisdiction of any such court and agree to accept service of
process outside the State of Florida in any matter to be submitted to any
such court pursuant hereto.
Page 6 of 10
19.ATTORNEY FEES: The prevailing party in any legal action or proceeding
arising out of this contract shall be entitled to recover reasonable attorney
fees from the other party.
20.TERMS INCLUSIVE: As used herein, the terms "Lessor" and "Lessee" include
the plural whenever the context requires or admits.
21.PUBLIC RECORDS ACCESS: Lessee as Contractor shall comply with the
requirements of Florida's Public Records law. In accordance with Section
119.0701, Florida Statutes, Contractor shall:
a. Keep and maintain public records that ordinarily and necessarily would
be required by City of Crestview in order to perform the service.
b. Upon request from the public agency's custodian of public records,
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 a cost
that does not exceed the cost provided under Florida's Public Law or as
otherwise provided by law.
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 this contract if Contractor does not transfer the records to
the public agency; and
d. Upon completion of the contract, transfer, at no cost, to the public agency
all public records in possession of Contractor or keep and maintain public
records required by the public agency to perform the service. If
Contractor transfers all public records to the public agency upon
completion of the contract, Contractor shall destroy any duplicate public
records that are exempt or confidential and exempt from public records
disclosure requirements. If Contractor keeps and maintains public records
upon completion of this contract, Contractor shall meet all applicable
requirements for retaining public records. All records stored
electronically must be provided to the public agency, upon request from
public agency's custodian of public records, in a format that is compatible
with the information technology systems of the City of Crestview.
Page 7 of 10
e. If Contractor has questions regarding the application of Chapter 119,
Florida Statutes, to Contractor duty to provide public records relating to
this Agreement, Contractor shall contact the Custodian of Public
Records at:
City Clerk, City of Crestview
198 North Wilson Street
P.O. Box 1209
Crestview, Florida 32536
(850) 682-1560 Extension 250
cityclerk@cityofcrestview.org
f. In the event the City of Crestview must initiate litigation against
Contractor in order to enforce compliance with Chapter 119, Florida
Statutes, or in the event of litigation filed against the City of Crestview
because Contractor failed to provide access to public records responsive
to a public record request, the City of Crestview shall be entitled to
recover all costs, including but not limited to reasonable attorneys' fees,
costs of suit, witnesses, fees, and expert witness fees expended as part of
said litigation and any subsequent appeals.
[Signature Pages Follow]
Page 8 of 10
Executed by LESSOR in the
presence of:
LESSOR
WHITAKER COMMUNICATIONS, INC.
TURE OF WITNES BY:
Printed Name: i��yl�.2e7,9,11,01, JAI I S T. WHITAKER —
Printed Name:��ry I/9" wi
STATE OF FLORIDA,
COUNTY OF OKALOOSA.
The foregoing Lease Agreement was acknowledged before me this .2 till72
day ofjaPbtik- 2017, by JAMES T. WHITAKER, who i6ersonally known to m_F„)
or has produ d as identification.
SIGNATURE TORY PUBLIC -STATE OF FL
Pri ted Nam of Notary: n i"�trt� J i?et?Gv G-
My Commission Expires: (»ay% ,7/,,S9 /g-
OFFICIAL NOTARY SEAL.
Natasha S. Peacock
Commission No. FF 145460
My Commission Expires
July 27, 2018
Page 9 of 10
APPROVED IN OPEN SESSION BY THE CITY COUNCIL OF THE CITY OF CRESTVIEW.
Executed
presenc
I'
SEE in the
GNATURE OF WIT EKES BY:
Printed Name:
i e144(2014-1
Printed Name: Arlan. g amlis.66
STATE OF FLORIDA,
COUNTY OF OKALOOSA.
LESSEE
CITY OF CRESVIEW FLORIDA
The Honorable David Cadle, Mayor
ATTEST:
ELIZABETH ROY — CLERK
The foregoing Lease Agreement was acknowledged before me this,
day of 2017, by DAVID CADLE, MAYOR of the CITY OF CRESTVIEW,
FLORIDA, who Personally known to me?or has produced as
identification.
SIGNATURE OF AIOTORY PUBLIC -STATE OF FL
Printed Name of Notary: A( ,S)I(L (�, PratoCi'
My Commission Expires:
lit 4477 , IT
OFFICIAL NOTARY SEAL
Natasha S. Peacock
Commission No. FF 14 460
My Commission Expires
July 27, 2018
Page 10 of 10