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

TENANT to remain on the Property after termination of this Agreement, TENANT shall pay rent at the existing monthly pro rata basis until such time as the removal of personal property and fixtures are completed. 2. 17 TENANT agrees not to use the Property for, or to permit the operation of; any offensive, noisy or dangerous activity, nuisance or anything against public policy, or operate in any way that will injure the reputation of the same or disturb the CITY, adjoining tenants, or patrons. Section 3. DUTIES AND RESPONSIBIUMS OF CITY 3. 01 CITY hereby grants TENANT the right to survey the Property in order to meet requirements to submit the applications for permits. The survey and the legal description on the survey shall be tied to the boundaries of the Fort Walton Beach Golf Club and shall become Exhibit B ", which shall be attached hereto and made a part hereof. CITY shall review TENANT' s survey. The cost of the survey shall be home by TENANT. 3. 02 CITY hereby grants TENANT the right and privilege to allow the co- location of the equipment of other telecommunication providers on the wireless communication service facilities. Such co- location shall be permitted pursuant to agreements to be entered into by and between said Packet Pg. 38  5. 4.c co- locators and TENANT. TENANT shall have the right to secure and retain rental payments from such co- locators pursuant to the terms of Section 6. 01. 3. 03 CITY shall make a diligent effort to timely review and approve the co- location leases, such approval shall not be unreasonably withheld, delayed or denied. All requests for approval of co- location leases shall be sent in accordance with Section 17. 01. City permits shall not be approved prior to review of co- location lease. Section 4. ACKNOWLEDGMENT 4. 01 CITY and TENANT acknowledge that TENANT' s ability to use the Property is contingent upon TENANT obtaining, after the execution of c this Agreement, all the certificates, permits and other approvals that are required by any federal, state and/ or local authorities. In the event that any certificate, permit or approval issued to TENANT is canceled, expires, lapses or is otherwise withdrawn or terminated by a governmental authority, so that TENANT is unable to use said Property for its intended purpose, TENANT shall have the right to terminate this Agreement pursuant to Section 7. 01. H 4. 02 Prior to the submittal of the application for the required building permit, TENANT shall have the right to perform or caused to be performed and shall have completed an assessment of the Property and the r, adjacent areas in order to determine whether such are contaminated by H hazardous substances or pollutants. If the assessment reveals the presence of hazardous substances or pollutants as defined under applicable environmental laws, TENANT shall have the right to terminate this 3 Agreement pursuant to Section 7. 01. H 4. 03 TENANT shall commence construction and installation of the wireless communication service facilities no later than six ( 6) months from Commencement Date. The commencement date for construction shall be coordinated with CITY. Construction and installation shall be complete within six ( 6) months of commencement. Shall TENANT not meet the designated time frame, CITY may terminate Agreement by providing a thirty (30) calendar days written notice to TENANT. Alternatively, the City Manager, upon a written request from TENANT, may authorize a reasonable extension. Section 5. TERM OF AGREEMENT 5. 01 This Agreement is effective upon the approval of the City Council the Commencement Date ") and shall terminate on = Ia, r. M 2007, subject to the extensions provided for in Section 5. Packet P¢ 39  F- 840 5. 02 TENANT shall have the option to extend this Agreement for three 3) additional five (5) year terms. Such extensions shall automatically occur unless TENANT gives written notice to CITY of TENANT' s of its intention not to extend this Agreement in accordance with Section 7. 02 below. 5. 03 K at the end of the third (3rd) five (5) year extension, this Agreement has not been terminated by either party in accordance with Section 7.02 below, this Agreement shall be renewed for successive annual terms. The rental fee payment shall be negotiated between the parties. Exclusive of rental payment and team., all other covenants and conditions of this Agreement will remain in effect. Section 6, 6.01 CITY shall be paid a rental fee payment of Twenty -Four Thousand and 00 /100 Dollars ($24,000.00) per year, which shall be adjusted annually pursuant to section 6. 03. Payment shall be made in advance in equal monthly installments of Two Thousand Dollars ($2,000. 00) each, with the fast monthly payment due no later than and each subsequent monthly payment due on the/ of 6ch Additionally, TENANT shall pay CITY fifteen percent ( 15 %) ofthe gross collocation revenues received by TENANT from any sublease, license or rental of space or capacity on the wireless communication service facilities constructed on the Property. Co- location revenues shall be paid monthly with the TENANT' s rental fee, pursuant to Section 6. 02; however, if the co- Location occurs after the TENANT' s monthly rental fee, then the first month' s co- location rem will be prorated and paid upon installation of oo- location equipment. 6. 02 The anniversary, for the purpose of this Agreement, is aA,kof each calendar year (the " Anniversary'). Monthly payments shall be submitted to the CITY by the date specified in 6. 01 and sent to City of Fort Walton Beach, P.O. Box 4009, Fort Walton Beach, Florida 32549 Attn: Finance Director. Rental payments shall be deemed late if not received by CITY within twenty (20) calendar days after the due date and shall bear interest at the rate of eighteen percent ( 18 %) per annum calculated daily thereafter until paid. 6. 03 The rental fee shall be adjusted upward each year, on the Anniversary, from the previous year's fee by three percent ( 3 %) or the Consumer Price Index ( CPI), whichever is greater. On each Anniversary of the Agreement, the rent escalation for CPI purposes shall be the annual rent for the preceding year plus an additional sum determined by Packet Pg. 4D  9. 4. 0 multiplying the percentage increase (if any) ofthe " Consumer Price Index" seasonably adjusted US city average for all items for all urban consumers published monthly in the " Monthly Labor Review' of the Bureau of Labor Statistics of the United States De ent of Labor ( CPI - 11), from the month of the prior year' s Annivs/rs o the mggqb immedi ately pZRAre c f year' s Anniversary. 6.04 In addition to and not in lieu ofthe foregoing consideration, TENANT further agrees to pay to CITY, as additional rent, an amount determined in accordance with this paragraph, in the event that CITY elects to purchase, during the Term of this Agreement, a generator to be owned, installed, operated and maintained solely by CITY, and which generator shall be the sole and exclusive property and responsibility of CITY and not that of TENANT. The amount of such additional rent shall c be the lesser of (r) the actual cost incurred by CITY for the purchase of q such generator, or ( ii) Six Thousand Five Hundred Dollars ($6, 500). TENANT shall pay such additional rent within thirty (30) days following receipt from CITY of written documentation reasonably satisfactory to TENANT establishing CITY' s payment of the cost of the aforesaid d generator. CITY shall at all times hold TENANT harmless from and against any damage or liability arising from the CITY' s ownership or w Operation of said generator. m Section 7. TERMINATION 7. 01 TENANT may terminate this Agreement pursuant to Sections 4. 01 and 4. 02 of this Agreement above by providing a ten ( 10) calendar days written notice to CITY. This Agreement also may be terminated by TENANT by providing a ten ( 10) calendar days written notice to CITY if TENANT determines the site is not appropriate for its operations for economic or technological reasons, including without limitation, signal interference. In the event of termination by TENANT for economic or technological reasons, the provisions of Section 7. 04 shall apply. 7. 02 Prior to the end of each term, TENANT may terminate this Agreement by providing written notice to the other party, pursuant to Section 17, at least six ( 6) months prior to the end of the current term. At the end ofthe third extension, CITY may terminate this Agreement by providing written notice to TENANT, pursuant to Section 17, at least six 6) months prior to the end of the term After the end of said third extension term, if this Agreement is extended for animal terms pursuant to Section 5. 03, either party may terminate this Agreement at the end of any such annual renewal term, by giving the other party written notice at least six (6) months prior to the end of the then current annual term. Packet Pg. 41