Loading...
HomeMy WebLinkAboutNextel South Corp Lease AgmtTODD H. WELLS PRINCIPAL SHAREHOLDER ALSO ADMITTED IN OHIO ..q C H N E LZ WELLS A PROFESSIONAL CORPORATION ATTORN EYS AT LAW BIRMINGHAM TOWER 280 NORTH OLD WOODWARD, SUITE 250 BIRMINGHAM, MICHIGAN 48009 TELEPHONE (248) 258-7074 TELEFAX (248) 258-7084 E-MAI L twells@swlawpc.com OTHER OFFICES 3650 PENOBSCOT BUILDING SUITE 27]4 DETROIT, MICHIGAN 482;>6 (313) 596-6666 801 BRIDGE STREet CHARLEVOIX, mIChIGAN 497;~0 (23]) 547-P501 VIA OVERNIGHT MAlL Gladys Acosta Acting Director Information Technology City of Miami Beach 1100 Washington Avenue Miami Beach, FL 33139 January 13, 2006 Nextel South Corp. Communications Site Lease Agreement (Building) FL-6809 Miami Beach Hub Site Dear Ms. Acosta: Enclosed you will find five (5) original copies of the Communications Site Lease Agreement. Please review and have the appropriate individual sign where indicated and return two (2) executed copies in the DHL Express envelope provided. If you have any questions, please do not hesitate to call our office. asp/THW Very truly yours, ~Un~a~da S. Pascaris Legal Secretary for Todd H. Wells Enclosures COMMUNICATIONS SITE LEASE AGREEMENT (BUILDING) This COMMUNICATIONS SITE LEASE AGREEMENT ("Agreement")is dated as of ~'q r/tg. Ir/ /// , 2006, by Nextel South Corp., a Georgia corporation ("Nextel" or "Tenant"), and the City of Miami Beach, a Florida municipal corporation ("Owner" or "Landlord"). For One Dollar ($1.00) paid to Owner, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Premises. Owner owns a parcel of land ("Land") upon which a parking deck (hereinafter referred to as the "Building") is constructed located in the City of Miami Beach, County of Miami-Dade, State of Florida, commonly known as 1550 Collins Ave. APN: ). The Building and the Land are collectively referred to herein as the "Property." The Land is more particularly described in Exhibit A annexed hereto. Subject to the provisions of Paragraph 2 below ("Effective Date/Due Diligence Period"), Owner hereby leases to Nextel and Nextel leases from Owner approximately Two Thousand Five Hundred (2,500) square feet of space on the roof of the Building and cable tray, conduit and riser space, and all other access and utility easements necessary or desirable therefor (collectively, "Premises") as may be described generally in Exhibit B annexed hereto. 2. Effective Date/Due Diligence Period. This Agreement shall be effective on the date of full execution hereof ("Effective Date"). Beginning on the Effective Date and continuing until the Term Commencement Date as defined in Paragraph 3 below ("Due Diligence Period"), Nextel shall only be permitted to enter the Property for the limited purpose of making appropriate engineering and boundary surveys, inspections, and other reasonably necessary investigations and signal, topographical, geotechnical, structural and environmental tests (collectively, "Investigations and Tests") that Nextel may deem necessary or desirable to determine the physical condition, feasibility and suitability of the Premises. In the event that Nextel determines, during the Due Diligence Period, that the Premises are not appropriate for Nextel's intended use, or if for any other reason, Nextel decides not to commence its tenancy of the Premises, then Nextel shall have the right to terminate this Agreement without penalty upon written notice to Owner at any time during the Due Diligence Period and prior to the Term Commencement Date. Owner and Nextel expressly acknowledge and agree that Nextel's access to the Property during this Due Diligence Period shall be solely for the limited purpose of performing the Investigations and Tests, and that Nextel shall not be considered an owner or operator of any portion of the Property, and shall have no ownership or control of any portion of the Property (except as expressly provided in this Paragraph 2), prior to the Term Commencement Date. 3. Term. The term of Nextel's tenancy hereunder shall commence on the installation of the Tenant Facilities (as defined in Paragraph 6 below) or eighteen (18) months following the Effective Date, whichever first occurs ("Term Commencement Date") and shall terminate on the fifth anniversary of the Term Commencement Date ("Term") unless otherwise terminated as provided herein. Tenant shall have the right to extend the Term for one (1) successive four (4) year period ("Renewal Term") on the same terms and conditions as set forth herein. This Agreement shall automatically be extended for each such Renewal Term unless Tenant notifies Landlord of its intention not to renew prior to the commencement of the succeeding Renewal Term, which notice shall be delivered to Landlord no later than ninety (90) days prior to the expiration of the Term. 4. Rent. (a) Within fifteen (15) business days following the Term Commencement Date and on the first day of each month thereafter, Tenant shall pay to Landlord as rent Three Thousand and 00/100 Dollars ($3,000.00) per month ("Rent"). Rent for any fractional month at the beginning or at the end of the Term or Renewal Term shall be prorated. Rent shall be payable to Landlord at 1700 Convention Center Drive Miami Beach Florida 33139; Attention: C.F.O. Patricia Walker. All of Tenant's monetary obligations set forth in this Agreement are conditioned upon Tenant's receipt of an accurate and executed W-9 Form from Landlord. (b) Within forty five (45) days following the date of execution of this Agreement, Tenant will give Landlord twenty (20) unactivated Blackberry data units. If Landlord chooses to utilize such units for communications purposes, Landlord shall be responsible for activating such units and paying for all activation, monthly service, and other related fees associated with such units. In addition, Tenant shall install, at its sole cost and expense, six (6) strands of fiber optic cable, which shall run from the City of Miami Beach's Police Department, located at 1100 Washington Avenue, to the City of Miami Beach',s City Hall, located at 1709.--x Convention Center Drive. The ins~allj~ti.on of the fiber optic cable shall be performed pursuant to Tenant s construction schedule, b~t '~a shall be completed no later than t~r$ tlO~ . Upon completion of the installation and construction of the six (6) strands of fiber optk /~ ~ cable, all right, title and interest shall fully vest in the Landlord. Landlord shall have exclusive use of the six (6) strands of fiber. ~ Landlord understands and agrees that the fiber optic cable will be left in a disconnect mode and the Landlord shall bear all costs and expenses related to attaching the fiber optic cable to the existing, City owned telecommunications equipment. -1- Pagelof12 5. Use. From and after the Term Commencement Date, the Premises may be used by Tenant for any lawful activity in connection with the provision of communications services, and Tenant shall have the ongoing right to perform such Investigations and Tests as Tenant may deem necessary or desirable. Landlord agrees to cooperate with Tenant, at no out of pocket expense to Landlord, in making application for and obtaining all licenses, permits and any and all other necessary approvals that may be required for Tenant's intended use of the Premises. 6. Facilities; Utilities; Access. (a) Tenant has the right, within the Premises, to construct, erect, maintain, test, replace, remove, operate and upgrade on the Premises communications facilities, including Without limitation utility lines, transmission lines, an air conditioned equipment shelter(s) and/or an air conditioned equipment room in, adjacent to, or on the roof of the Building, electronic equipment, transmitting and receiving antennas, microwave dishes, antennas and equipment, a power generator and generator pad, and supporting equipment and structures therefor ("Tenant Facilities"). In connection therewith, Tenant has the right to do all work necessary to prepare, maintain and alter the Premises for Tenant's business operations and to install transmission lines connecting the antennas to the transmitters and receivers. All of Tenant's construction and installation work shall be performed at Tenant's sole cost and expense and in a good and workmanlike manner. Tenant shall hold title to the Tenant Facilities and all of the Tenant Facilities shall remain Tenant's personal property and are not fixtures. Tenant has the right to remove the Tenant Facilities at its sole expense on or before the expiration or earlier termination of this Agreement, and Tenant shall repair any damage to the Premises caused by such removal. Upon the expiration or earlier termination of this Agreement, Tenant shall remove the Tenant Facilities from the Property and restore the Premises to the original condition prior to the Effective Date, reasonable wear and tear excepted. (b) Tenant shall pay for the electricity it consumes in its operations at the rate charged by the servicing utility company. Tenant shall have the right to draw electricity and other utilities from the existing utilities on the Property or obtain separate utility service from any utility company that will provide service to the Property. In connection therewith, Landlord hereby grants to the local telephone, power and utility companies (as appropriate) non-exclusive rights to locate, construct, install, operate, maintain, repair, replace, alter, extend, and/or remove cables and lines on, over, under and across a portion of Landlord's Property as necessary or desirable therefor. Landlord agrees to sign such documents or easements, as may be required by said utility companies to provide such service to the Premises. Any easements necessary for such power or other utilities will be at locations reasonably acceptable to Landlord and the servicing utility company. (c) Tenant, Tenant's employees, agents and contractors shall have access to the Premises without notice to Landlord twenty-four (24) hours a day, seven (7) days a week, at no charge. Landlord grants to Tenant, and Tenant's agents, employees and contractors, a non-exclusive right and easement for pedestrian and vehicular ingress and egress across the Property, and such right and easement are described generally in Exhibit B. (d) Landlord shall maintain all access roadways from the nearest public roadway to the Premises in a manner sufficient to allow pedestrian and vehicular access at all times under normal weather conditions. Landlord shall be responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by Tenant's use of such roadways. 7. Interference. (a) Tenant shall operate the Tenant Facilities in compliance with all Federal Communications Commission ("FCC") requirements including those prohibiting interference to communications facilities of Landlord or other lessees or licensees of the Property, provided that the installation and operation of any such facilities predate the installation of the Tenant Facilities. (b) Subsequent to the installation of the Tenant Facilities, Landlord will not, and will not permit its lessees or licensees to, install new equipment on or make any alterations to the Property or property contiguous thereto owned or controlled by Landlord, if such modifications are likely to cause interference with Tenant's operations. In the event interference occurs, Landlord agrees to use reasonable efforts to eliminate such interference in a reasonable time period. Landlord's failure to comply with this paragraph shall be a material breach of this Agreement. 8. Taxes. If personal property taxes are assessed, Tenant shall pay any portion of such taxes directly attributable to the Tenant Facilities. Landlord shall pay when due all real property taxes, assessments and deferred taxes on the Property. - 2 - Page 2 of 12 9. Waiver of Landlord's Lien. (a) Landlord waives any lien rights it may have concerning the Tenant Facilities, all of which are deemed Tenant's personal property and not fixtures, and Tenant has the right to remove the same at any time without Landlord's consent provided Tenant repairs and restores the Premises pursuant to paragraph 6(a) above. (b) Landlord acknowledges that Tenant has entered into a financing arrangement including promissory notes and financial and security agreements for the financing of the Tenant Facilities ("Collateral") with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, Landlord (i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 10. Termination. This Agreement may be terminated without further liability on thirty (30) days prior written notice as follows: (i) by either party upon a default of any covenant or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of default, except that this Agreement shall not be terminated if the default cannot reasonably be cured within such sixty (60) day period and the defaulting party has commenced to cure the default within such sixty (60) day period and diligently pursues the cure to completion; provided that the grace period for any monetary default is ten (10) days from receipt of written notice; or (ii) by either party, if Tenant does not obtain or maintain any license, permit or other approval necessary for the construction and operation of the Tenant Facilities; or (iii) by either party, if Tenant is unable to occupy and utilize the Premises due to an action of the FCC, including without limitation, a take back of channels or change in frequencies; or (iv) by either party, if any environmental report for the Property reveals the presence of any Hazardous Material after the Term Commencement Date; or (v) by Tenant if Tenant determines that the Premises are not appropriate for its operations for economic or technological reasons, including, without limitation, signal interference; or (vi) by Tenant if the Landlord fails to deliver to Tenant an executed memorandum of agreement or non-disturbance and attomment agreement pursuant to Paragraphs 19(g) and (h) below. 11. Destruction or Condemnation. If the Premises or Tenant Facilities are damaged, destroyed, condemned or transferred in lieu of condemnation, either party may elect to terminate this Agreement as of the date of the damage, destruction, condemnation or transfer in lieu of condemnation by giving notice to the other no more than forty-five (45) days following the date of such damage, destruction, condemnation or transfer in lieu of condemnation. If either party chooses not to terminate this Agreement, Rent shall be · reduced or abated in proportion to the actual reduction or abatement of use of the Premises. 12. Insurance. (a) Tenant, at Tenant's sole cost and expense, shall procure and maintain commercial general liability ("CGL") insurance covering bodily injury and property damage with a combined single limit of at least One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Subject to the standard exclusions and limitations of CGL policies, such insurance shall insure, on an occurrence basis, against all liability of Tenant, its employees and agents arising out of or in connection with Tenant's use of the Premises, all as provided for herein. Within thirty (30) days following the Effective Date, Tenant shall provide Landlord with a certificate of insurance ("COI") evidencing the coverage required by this Paragraph 12. Alternatively, Tenant shall have the option of providing Landlord with evidence of such coverage electronically by providing to Landlord a Uniform Resource Locator ("URL") Link to access Tenant's memorandum of insurance ("MOI") website in order for Landlord to review the coverage required by this Paragraph 12. (b) Landlord, at Landlord's sole cost and expense, shall procure and maintain CGL insurance covering bodily injury and property damage with a combined single limit of at least One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Subject to the standard exclusions and limitations of CGL policies, such insurance shall insure, on an occurrence basis, against all liability of Landlord, its employees and agents arising out of or in connectiOn with Landlord's use, occupancy and maintenance of the Property. Within thirty (30) days following the Effective Date, Landlord shall provide Tenant with a COI evidencing the coverage required by this Paragraph 12. Alternatively, Landlord shall have the option of providing Tenant with evidence of such coverage electronically by providing to Tenant a URL Link to access Landlord's MOI website in order for Tenant to review the coverage required by this Paragraph 12. (c) Either party may maintain a program of self-insurance against the above risks with actuarially determined levels of protection no less than the above stated amounts. 13. Waiver of Subrogation. Landlord and Tenant release each other and their respective principals, employees, representatives and agents, from any claims for damage to any person or to the Property or the Premises or to the Tenant Facilities or any other property thereon caused by, or that result from, risks insured against under any insurance policies carried by the parties and in force at - 3 - Page 3 of 12 the time of any such damage. Landlord and Tenant shall cause each insurance policy obtained by them to provide that the insurance company waives all right of recovery by way of subrogation against the other in connection with any damage covered by any policy. Neither Landlord nor Tenant shall be liable to the other for any damage caused by any of the risks insured against under any insurance policy required by Paragraph 12. 14. Liability and Indemnity. To the extent permitted by Florida law, and subject to Landlord's limitation of liability as provided in Section 768.28, Florida Statutes, Landlord and Tenant shall each indemnify, defend and hold the other harmless from and against all claims, losses, liabilities, damages, costs, and expenses (collectively "Losses") arising from the indemnifying party's breach of any term or condition of this Agreement or from the negligence or willful misconduct of the indemnifying party or its agents, employees or contractors in or about the Property. The duties described in this Paragraph 14 shall apply as of the Effective Date of this Agreement and survive the termination of this Agreement. 15. Assignment and Sublettin~t. Tenant may not assign, or otherwise transfer all or any part of its interest in this Agreement or in the Premises without the prior written consent of Landlord; provided, however, that Tenant may assign its interest to its parent company, any subsidiary or affiliate of it or its parent company or to any successor-in-interest or entity acquiring fifty-one percent (51%) or more of its stock or assets, subject to any financing entity's interest, if any, in this Agreement as set forth in Paragraph 9 above. Upon assignment, Tenant shall be relieved of all future performance, liabilities, and obligations under this Agreement, provided that the assignee assumes all of Tenant's obligations herein. Landlord may assign this Agreement, which assignment may be evidenced by written notice to Tenant within a reasonable period of time thereafter, provided that the assignee assumes all of Landlord's obligations herein, including but not limited to, those set forth in Paragraph 9 ("Waiver of Landlord's Lien") above. This Agreement shall run with the Land and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, heirs and assigns. Notwithstanding anything to the contrary contained in this Agreement, Tenant may assign, mortgage, pledge, hypothecate or otherwise transfer without notice or consent its interest in this Agreement to any f'mancing entity, or agent on behalf of any financing entity to whom Tenant (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. 16. Warranty of Title and Quiet Enioyment. Landlord warrants that: (i) Landlord owns the Property in fee simple, has'rights of access thereto from the nearest public roadway, which Tenant is legally permitted to use, and the Property and access rights are free and clear of all liens, encumbrances and restrictions except those of record as of the Effective Date; and (ii) Landlord covenants and agrees with Tenant that Tenant may peacefully and quietly enjoy the Premises and such access thereto, provided that Tenant is not in default hereunder after notice and expiration of all cure periods. 17. Repairs. Tenant shall repair any damage to the Premises or Property caused by the negligence or willful misconduct of Tenant. Upon expiration or termination hereof, Tenant shall repair and restore the Premises to substantially the condition in which it existed as of the Effective Date, reasonable wear and tear and loss by casualty or other causes beyond Tenant's reasonable control excepted. 18. Hazardous Material. (a) As of the Effective Date of this Agreement: (1) Tenant hereby represents and warrants that it shall not use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon or affecting the Property in violation of any Environmental Law (as defined below), and (2) Landlord hereby represents and warrants that (i) it has no knowledge of the presence of any Hazardous Material located in, on, under, upon or affecting the Property in violation of any Environmental Law; (ii) no notice has been received by or on behalf of Landlord from, and Landlord has no knowledge that notice has been given to any predecessor owner or operator of the Property by, any governmental entity or any person or entity claiming any violation of, or requiring compliance with any Environmental Law for any environmental damage (or the presence of any Hazardous Material) in, on, under, upon or affecting the Property; and (iii) Landlord will not permit itself or any third party to use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon, or affecting the Property in violation of any Environmental Law. (b) Without limiting Paragraph 14, Landlord and Tenant shall each indemnify, defend and hold the other, to the extent permitted by law, harmless from and against all Losses (specifically including, without limitation, attorneys', engineers', consultants' and experts' fees, costs and expenses) arising from (i) any breach of any representation or warranty made in this Paragraph 18; and/or (ii) environmental conditions or noncompliance with any Environmental Law (as defined below) that result, in the case of Tenant, from operations in or about the Property by Tenant or Tenant's agents, employees or contractors, and in the case of Landlord, from the ownership or control of, or operations in or about, the Property by Landlord or Landlord's predecessors in interest, and their respective agents, employees, contractors, tenants, guests or other parties. The provisions of this Paragraph 18 shall apply as of the Effective Date of this Agreement and survive termination of this Agreement. - 4 - Page 4 of 12 (c) "Hazardous Material" means any solid, gaseous or liquid wastes (including hazardous wastes), regulated substances, pollutants or contaminants or terms of similar import, as such terms are de£med in any Environmental Law, and shall include, without limitation, any petroleum or petroleum products or by-products, flammable explosives, radioactive materials, asbestos in any form, polychlorinated biphenyls and any other substance or material which constitutes a threat to health, safety, property or the environment or which has been or is in the furore determined by any governmental entity to be prohibited, limited or regulated by any Environmental Law. (d) "Environmental Law" means any and all present or future federal, state or local laws, rules, regulations, codes, ordinances, or by-laws, and any judicial or administrative interpretations thereof, including orders, decrees, judgments, rulings, directives or notices of violation, .that create duties, obligations or liabilities with respect to: (i) human health; or (ii) environmental pollution, impairment or disruption, including, without limitation, laws governing the existence, use, storage, treatment, discharge, release, containment, transportation, generation, manufacture, ref'mement, handling, production, disposal, or management of any Hazardous Material, or otherwise regulating or providing for the protection of the environment. 19. Miscellaneous. (a) This Agreement constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other agreements concerning the subject matter contained herein. Any amendments to this Agreement must be in writing and executed by both parties. (b) Both parties represent and warrant that their use of the Property and their personal property located thereon is in compliance with all applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent government authority. (c) If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (d) This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. (e) Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below: Landlord: Tenant: City of Miami Beach Patricia Walker Chief Financial Officer 1700 Convention Center Drive Miami Beach FL 33139 Phone: With a copy to: Nextel South Corp., a Georgia corporation 851 Trafalgar Court, Suite 300 East Maitland, FL 32751 Atto: Property Manager Phone: (407) 838-5334 With a copy to: Eleni Pantaridis, Esq. Leibowitz & Associates, PA One SE Third Avenue, Suite 1450 Miami, FL 33131 Nextel South Corp. 2001 Edmund Halley Drive Reston, VA 20191-3436 Atto: Regional Legal Services, Contracts Manager Landlord or Tenant may from time to time designate any other address for this purpose by written notice to the other party. All notices hereUnder shall be deemed received upon actual receipt or refusal to accept delivery. - 5 - Page 5 of 12 (f) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, TENANT AND LANDLORD EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. (g) Landlord agrees to execute and deliver to Tenant a Memorandum of Agreement in the form annexed hereto as Exhibit C and acknowledges that such Memorandum of Agreement will be recorded by Tenant in the official records of the County where the Property is located. (h) In the event the Property is encumbered by a mortgage or deed of trust, Landlord agrees to obtain and deliver to Tenant an executed and acknowledged non-disturbance and attornment instrument for each such mortgage or deed of trust in a recordable form reasonably acceptable to both parties. (i) Landlord agrees to fully cooperate with Tenant (including obtaining and/or executing necessary documentation) to clear any outstanding title issues that could adversely affect Tenant's interest in the Premises created by this Agreement. (j) In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Agreement, such party shall not unreasonably delay or withhold its approval or consent. (k) Each of the parties hereto represent and warrant that they have the right, power, legal capacity and authority to enter into and perform their respective obligations under this Agreement. (1) Both parties took part in the negotiation of this Agreement and agree that legal concepts intended to construe the Agreement against the drafter will not apply against either party. (m) In the event of any breach or default by either party, the other party shall be entitled to all rights and remedies provided for in this Agreement and/or available at law, in equity, by statute or otherwise, all of which rights and remedies shall be cumulative (and not exclusive). (n) The captions and headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provision of this Agreement. (o) All Recitals set forth above, and all Riders and Exhibits annexed hereto, form material parts of this Agreement and are hereby incorporated herein by this reference. (P) This Agreement may be executed in duplicate counterparts, each of which shall be deemed an original. 20. Marking and Liehting Requirements. Landlord shall be responsible for compliance with all marking and lighting requirements of the Federal Aviation Administration ("FAA") and the FCC. Should Tenant be cited because the Property is not in compliance and should Landlord fail to cure the conditions of noncompliance, Tenant may terminate this Agreement. 21. Supplier Diversity. Nextel is committed to equal employment and vendor diversity. As part of this commitment, it is the policy of Nextel that small business concerns, veteran-owned small business concerns, HUBZone small business concerns, women- owned small business concerns, small disadvantaged business concerns (including 8(a) business concerns) and hi.storically black colleges and universities and minority institutions ("Diverse Suppliers," as further defined below) shall have the maximum practicable opportunity to participate in performance of contracting between Nextel and its vendors. The term "Diverse Supplier(s)" shall mean and be defined as set forth in Federal Acquisition Regulation Part 19 and 13 C.F.R. Part 121. In addition, "Historically black colleges and universities," as included in the definition of "Diverse Suppliers" for purposes of this Agreement, shall mean and include institutions determined by the Secretary of Education to meet the requirements of 34 C.F.R. Section 608.2; any nonprofit research institution that was an integral part of such a college or university before November 14, 1986; and "Minority institutions," as included in the definition of "Diverse Suppliers" for purposes of this Agreement, shall mean institutions meeting the requirements of Section 1046(3) of the Higher Education Act of 1965 (20 U.S.C. §1135d-5(3)); and also Hispanic-serving institutions as defined in Section 316(b)(1) of such Act (20 U.S.C. §1059c(b)(1)). Landlord shall confirm in the space below whether or not Landlord reasonably believes it qualifies as a Diverse Supplier. ***SIGNATURES ON FOLLOWING PAGE*** - 6 - Page 6 of 12 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of the last signature below. LANDLORD' TENANT: The City of Miami Beach, a Florida municipal corporation By: ~ Name: Title: l~'aSo r ~ .C-lq t¥~lolL Date: January 11, 2006 Nextel South Corp., a Georgia corporation By: Name: Title: Date' Tax I.D.' Diverse Supplier: [-] Yes [~ No Witnesses for ~a..~. a PrintName: Robert Parcher Print Name: APPROVED A~ TO FORM & LANGUAGE & FOR EXECUTION - 7 - Page 7 of 12 EXHIBIT A DESCRIPTION OF LAND to the Agreement dated , 200 , by and between th,e City of Miami Beach, a Florida municipal corporation, as Landlord, and Nextel South Corp., a Georgia corporation, as Tenant. ~ The Land is described and/or depicted as follows (metes and bounds description)' A WRITTEN DESCRIPTION OF THE LAND WILL BE PRESENTED HERE OR ATTACHED HERETO LEGAL DESCRIPTION The subject parcel is described as follows: Lots 8 through 13, Block 57, Fisher's First Subdivision of Alton Beach, according to the plat thereof as recorded in Plat Book 2, Page(s) 77, Public Records of Miami-Dade County, Florida. - 8 - Page 8of12 EXHIBIT B: " DESCRIPTION OF PRE. I~qlSES to the Agreement dated . mu .nicipal corPoration, as Landlord, ' and Nextel South Corp., a Georgia-corporation, as Tenant. .. · . '. The Premises.are described' and/or depicted as follows- .'.- .. . · .. · .- . A DRA~q. NG OF TltE PREMISES WIIJ~ BE PRESENTED HERE'OR ATTACHED HER~T.O .'. -. S~ELTER O~ ECEWTEO Nextel .Leased Premises 70 ' x70" · · , 200__, by and between the City'of'Miami Beach, a-Florida.. N°tes: o SEVENTH FLOOR-PLAN.. Tenant may replace this EXhibit with a survey of the Premises once Tenant receives it. . . The Premises shall be setback, from' the Property's boundaries., as required by the applicable governmental authorities. The access-road's' width will be the width required by the applicable governmental authorities, including, lPoliee and fire departments. · . . 4. Without in any way.limiting Paragraph 6 (or Tenant'g right to make future changes), the type, number~ mounting positions and locations of antennas and transmission lines are illustrative only. The actual types, numbers~ mounting' positions 'and locafiom' may vary from what is shown above. ' 5. The locations-of any utility easements are illustrative only. The actual locations will be determined by the servicing utility ~mpa.ny in Compliance with all local laws and reeulations. ' 6. orawxngs noc to Scale. ~ Nextel Conmunications access and utility easements over existing parking lots and roadways of property. _ *i);S.urvey is attached. - 9 - Page 9 of 12 1. Exhibit B continued i! !t EXHIBIT C to the Agreement dated , 200m, by and between the City of Miami Beach, a Florida municipal corporation, as Landlord, and Nextel South Corp., a Georgia corporation, as Tenant. RECORDED AT REQUEST OF, AND WHEN RECORDED RETURN TO: Nextel South Corp., a Georgia corporation 851 Trafalgar Court, Suite 300 East Maitland, FL 32751 Atto: Property Manager MEMORANDUM OF AGREEMENT This MEMORANDUM OF AGREEMENT is entered into on ,200 , by the City of Miami Beach, a municipal corporation, with an ad&ess at 1700 Convention Center Drive, Miami Beach Florida 33139 (hereinafter referred to as "Owner" or "Landlord") and Nextel South Corp., a Georgia corporation, with an office at 851 Trafalgar Court, Suite 300 East, Maitland, Florida 32751 (hereinafter referred to as "Nextel" or "Tenant"). 1. Owner and Nextel entered into a Communications Site Lease Agreement ("Agreement") dated as of , 2006, effective upon full execution of the parties ("Effective Date") for the purpose of Nextel undertaking certain Investigations and Tests and, upon finding the Property appropriate, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Agreement. 2. The term of Nextel's tenancy under the Agreement is for five (5) years commencing on ,2006, ("Term Commencement Date"), and terminating on the fifth anniversary of the Term Commencement Date with one (1) successive four (4) year option to renew. 3. The Land that is the subject of the Agreement is described in Exhibit A annexed hereto. The portion of the Land being leased to Tenant and all necessary access and utility easements (the "Premises") are set forth in the Agreement. In witness whereof, the parties have executed this Memorandum of Agreement as of the day and year first written above. LANDLORD: The City of Miami Beach, a municipal corporation TENANT: Nextel South Corp., a Georgia corporation By: EXHIBIT ONLY- DO NOT EXECUTE By: Name: Title: Date: Name: Title' Date: EXHIBIT ONLY- DO NOT EXECUTE - 10 - Page 10 of 12 STATE OF FLO~DA COUNTY OF MIAMI-DADE On ,200__, before me, , Notary Public, personally appeared , for the City of Miami Beach, a municipal corporation, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their at~thorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public My commission expires: (SEAL) STATE OF COUNTY OF On ., 200__, before me, , Notary Public, personally appeared , for Nextel South Corp., a Georgia corporation, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their at~thorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public My commission expires: (SEAL) - 11- Pagellofl2 MEMORANDUM OF AGREEMENT EXHIBIT A DESCRIPTION OF LAND to the Memorandum of Agreement dated ,200 , by and between the City of Miami Beach, a municipal corporation, as Landlord, and Nextel South Corp., a Georgia corporation, as Tenant. The Land is described and/or depicted as follows (metes and bounds description)' A WRITTEN DESCRIPTION OF THE LAND wILL BE PRESENTED HERE OR ATTACHED HERETO - 12 - Page 12 of 12