Fort Walton Beach Council agenda — 06-14-11 regular — reading text

constitute a breach of this Agreement and CITY, at its sole discretion, may terminate this Agreement pursuant to Section 7 of this Agreement Na Section 10. ASSIGNMENT 10. 01 This Agreement may be sold, assigned or transferred by TENANT, without any approval or consent of CITY to TENANT' s principal, affiliates, or subsidiaries of its principal; to any entity which acquires all or substantially all of TENANT' s assets in the market defined by the federal Communications Commission in which the Property is located, by reason of a merger, acquisition or other business reorganization; or to any entity which acquires or receives an interest in the majority of communication towers of TENANT in the market defined by the Federal Communications Commission in which the Property is located. In the event of such an assignment, sale, or transfer, TENANT shall, within a reasonable time thereafter, provide to CITY or cause the acquiring entity to provide to CITY a written confirmation by the acquiring entity that such entity accepts the sale, assignment or transfer subject to any and all terms, conditions and limitations imposed hereby and which written confirmation shall include an affirmative statement evidencing entity' s intent to fulfill the obligations imposed by CITY in contemplation hereof. Such written confirmation may be contained in an executed asset purchase, stock 12 Packet Pg. 45  8. 4. c purchase, merger, or other similar agreement between TENANT and the acquiring entity. Notwithstanding the acquiring entity' s acceptance, TENANT shall remain liable to CITY under the terns of this Agreement, and such sale, transfer or assignment shall always be with full recourse to TENANT; provided, however, that TENANT may request that CITY release TENANT from TENANT' s obligations hereunder, and upon receipt of substantive documentation establishing that the acquiring entity has substantial assets, is financially solvent, and has a credit rating comparable to or better than that of TENANT, CITY will not unreasonably withhold or delay its release of TENANT. As to other parties, this Agreement may not be sold, assigned or transferred without the written consent of CITY, which consent shall not be unreasonably withheld or delayed. TENANT shall not sublet the Property without the approval or consent of CITY, which consent shall not be unreasonably e withheld or delayed. Any sublease that is entered into by TENANT shall q 2 be subject to the provisions ofthis Agreement and shall be binding upon the successors, assigns, heirs and legal representatives of the respective parties hereto. TENANT shall guarantee the performance of sublessee and such subletting shall always be with full recourse to TENANT. Jd Section 11. COMPLIANCE WITH LAWS o N 11. 01 TENANT shall comply with all applicable statutes, laws, ordinances, Hiles, regulations and lawful orders of the United States of America, State of Florida, City of Fort Walton Beach and of any other public authority which may be applicable, including but not limited to a Section 704 of the Telecommunications Act of 1996. CITY agrees to m keep the Property in conformance with all applicable laws, rules and regulations and agrees to reasonably cooperate with TENANT regarding any compliance by TENANT in respect to its use of the Property. H Section 12. GOVERNING LAW 12. 01 This Agreement and the performance thereof shall be governed, interpreted, construed, and regulated by the laws of the State of Florida. Venue for any action arising out of this lease Agreement shall lie in Okaloosa County, Florida. Section 13. INSOLVENCY 13. 01 In the event that either party shall become insolvent, make a general assignment for the benefit of creditors, suffer or permit the appointment of a receiver for its business or its assets or shall avail itself of or become subject to, any proceeding under the Federal Banlauptcy Act or any other statute of any state relating to insolvency or the protection of rights of creditors, or become subject to rehabilitation, then, 13 Packat Pg. 46  8. 4. 0 at the option of the other party and immediately upon written notice, this Agreement shall terminate and be of no further force and effect. Section 14. ENTIRE AGREEMENT 14. 01 This Agreement contains the entire understanding of the parties relating to the subject matter hereog superseding all prior communications between the parties, whether oral or written. This Agreement may not be altered, amended modified or otherwise changed nor may any of the terms hereof be waived, except by a written instrument executed by both parties. The failure of a party to seek redress for violation of or to insist on strict performance of any of the covenants of this Agreement shall not be construed as a waiver or relinquishment for the future of any covenant, terns condition or election, but the same shall continue and remain in full o force and effect. qu Section 15. SEVERABII.ITY c0 15. 01 Should any part, term or provision of this Agreement be by the aA courts decided to be invalid, illegal or in conflict with any law of this State, the validity ofthe remaining portions or provisions shall not be o affected thereby. Section 16. ABANDONMENT OF PROPERTY n 16. 01 Subject to reasonable notification by CITY to TENANT as provided in Section 7. 03 above, and Section 17. 01 below, if TENANT shall, before the end of the term of this Agreement, (i) abandon the Property, ( ii) discontinue the operations of the wireless communication service facilities, or (iii) fail to pay rent as required by this Agreement, then CITY, at its sole option, may cancel and terminate this Agreement or it may enter the Property and improvements thereon by force or otherwise, without being liable in any way therefor, and relet the Property, at such price and upon such terms and for such duration of time as CITY may reasonably determine. 16.02 For purposes of this Agreement, the term " discontinuation" shall mean any closing ( other than a scheduled closing or closing necessitated by acts beyond the control ofTENANT) or failure to provide all services or amenities for sixty ( 60) consecutive days or more; and the term abandonment" shall mean an implied or express repudiation or renunciation of any operations of the wireless communication service facilities under this Agreement or any material part thereof 14 Packet Pg. 47  F 8--4c J Section 17. NOTICES 17. 01 No notice or demand related to or required by this Agreement shall be effective unless the notice or demand is in writing and is either delivered personally to the party for whom intended, or an officer of the party if a corporation, or sent by United States registered or certified mail return receipt requested. If sent to TENANT, the notice or demand must be sent to its office at : TENANT: Verizon Wireless Personal Communications LP d/ b /aVerizon Wseless 180 Washington Valley Road Bedminster, New Jersey 07921 Attn: Network Real Estate If the notice or demand is sent to CITY, it must be sent to: COq V CITY: City Manager v City of Fort Walton Beach f P.O. Box 4009 107 Miracle Strip Parkway SW Fort Walton Beach, FL 32549 vwv 0 Section 18. OTHER PROVISIONS NNa 18. 01 CITY covenants that TENANT, on paying the rent and performing MmN the covenants, shall peaceably and quietly have, hold and enjoy the Property. CITY covenants that CITY is seized ofgood and sufficient title and interest in and to the Property and has full authority to enter into and execute this Agreement 18. 02 If any party obtains a judgment against any other party by reason of breach of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees