Item O13 013
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE �� i Mayor Holly Merrill Raschein,District 5
The Florida Keys Mayor Pro Tern James K.Scholl,District 3
Craig Cates,District 1
Michelle Lincoln,District 2
' David Rice,District 4
Board of County Commissioners Meeting
August 21, 2024
Agenda Item Number: 013
2023-2786
BULK ITEM: Yes DEPARTMENT: County Attorney
TIME APPROXIMATE: STAFF CONTACT: Joe DiNovo (305)292-3470
N/A
AGENDA ITEM WORDING:
Approval of Settlement Agreement between Monroe County, Sugarloaf Key Volunteer Fire Department
and Sugarloaf Wi-Fi, Incorporated, to resolve the litigation in Case Nos. 2017-CA-20-K and 2017-CA-
631-K and facilitate the construction of a new fire station for Monroe County at the current location of
the Sugarloaf Key Volunteer Fire Department's Station 10 by Fortress Secured, LLC, pursuant to a
comprehensive agreement between Monroe County and Fortress Secured, LLC and Approval of a lease
agreement between Monroe County and Sugarloaf Wi-Fi, providing for the lease of approximately 720
square feet of space on the Sugarloaf Fire Station #10 property to construct and operate a cellular
communication tower, attached to the Settlement Agreement as Exhibit 1.
ITEM BACKGROUND:
In April of 2022, the County received an unsolicited proposal from Fortress Secured, LLC ("Fortress"),
pursuant to Section 255.065, Florida Statutes- the Public-Private Partnership ("P3") statute. Fortress
proposed to deliver a replacement for Station 10, which is currently owned by the Sugarloaf Volunteer
Fire Department, Inc. ("Sugarloaf VFD").
At the time, the County, Sugarloaf VFD, and Sugarloaf Wi-Fi, Inc. ("Wi-Fi"), were involved with
circuit court litigation (Case Nos. 2017-CA-20-K and 2017-CA-631-K) concerning a lease between
Sugarloaf VFD and Wi-Fi. During the pendency of the litigation, Sugarloaf VFD advised the County
that it no longer had the capacity to provide fire-fighting services and wanted to donate its station to the
County so Monroe County Fire Rescue could continue to serve the Sugarloaf community. Fortress's
proposal was premised on the County acquiring ownership of the property from Sugarloaf VFD and
then contracting with Fortress for demolition of the existing structure and construction of a new station.
The proposal contemplated providing space for a cell tower on the property, which would enable the
County to resolve issues then caught up in litigation with Wi-Fi.
In April 2022, the Board deemed the proposal a "qualifying project" under the P3 statute. The County
proceeded to advertise the project and solicit competing proposals. After receiving none, the County
2751
undertook negotiations with Fortress. Those negotiations resulted in an interim agreement effective
March 6, 2023. Pursuant to the interim agreement, Fortress undertook predevelopment activities
focused on design plans and construction budgeting and scheduling. Functionally, Fortress financed all
the predevelopment activities (it has received no compensation under the interim agreement).
During the predevelopment period, the County and Fortress negotiated a draft comprehensive
agreement under the P3 statute.
Effective July 1, 2024, Chapter 2024-96, Laws of Florida, amended the P3 statute to require an
additional public meeting before approving a comprehensive agreement resulting from an unsolicited
proposal. See Subsection 255.065(3)(f)l, Florida Statutes. The new law also adds detail concerning the
"public interest" finding necessary to approve a comprehensive agreement. See Subsection 255.065(3)
(c), Florida Statutes.
At a BOCC budget meeting held on July 16, 2024, the draft comprehensive agreement was presented to
allow affected public entities and members of the public an opportunity to review the draft and provide
comments. No public comments were received during that meeting.
The draft comprehensive agreement was thereafter presented to the BOCC for approval at its July 17,
2024, regular meeting.
At the July 17th meeting, before approving the comprehensive agreement, the Board considered the
factors required by the P3 statute. With regard to the public interest finding, the Board considered the
details required by the new law, specifically:
1. The project's benefits to the public.
2. The project's financial structure and economic efficiencies.
3. The qualifications and experience of Fortress and its ability to perform the project.
4. The project's compatibility with regional infrastructure plans.
5. Public comments submitted verbally during this initial meeting. The County will provide a
statement that explains why the project should proceed and addresses such comments.
Following the consideration of the above factors, the BOCC approved the comprehensive agreement
and adopted Resolution 239-2024 formally acknowledging receipt of the unsolicited proposal,
concluding that the proposal is in the public interest and approving the comprehensive agreement in
accordance with Subsection 255.065(7), Florida Statutes.
Execution of the comprehensive agreement is contingent upon Monroe County obtaining title to
Sugarloaf Fire Station #10 property from the Sugarloaf VFD. Settlement of the litigation in Case Nos.
2017-CA-20-K and 2017-CA-631-K will permit the conveyance of the Sugarloaf Fire Station #10
property from Sugarloaf VFD. Settlement of the litigation, in turn, is contingent upon the execution of a
lease agreement between Monroe County and Sugarloaf Wi-Fi, which provides for the lease of
approximately 720 square feet of space on the Sugarloaf Fire Station #10 property to construct and
operate a cellular communication tower. The lease is attached as Exhibit 1 to the Settlement Agreement.
PREVIOUS RELEVANT BOCC ACTION:
On 7/19/2017 (Item#N5), the BOCC authorized the County Attorney to file suit seeking to void the
lease between the Sugarloaf Volunteer Fire Department and Sugarloaf Wi-Fi, Inc. due to violations of
the Sunshine Law.
On 4/20/22 (Item #P10), the Board deemed the unsolicited proposal a "qualifying project" and directed
2752
that staff proceed under the P3 statute.
On 7/20/22 (Item #Rll), the Board authorized then Assistant County Administrator Kevin Wilson to
negotiate agreements with Fortress Secured, LLC.
On 1/18/23 (Item#06), the Board approved the interim agreement.
On 7/16/24, the Board held a public hearing as required by statute in order to allow affected public
entities and members of the public an opportunity to review the draft and provide comments. No
comments were submitted.
On 7/17/24, following the consideration of the factors set forth in Section 255.065, Florida Statutes.as
amended by Chapter 2024-96, Laws of Florida, the BOCC approved the comprehensive agreement and
adopted Resolution 239-2024 formally acknowledging receipt of the unsolicited proposal, concluding
that the proposal is in the public interest and approving the comprehensive agreement in accordance
with Subsection 255.065(7), Florida Statutes.
INSURANCE REQUIRED:
Yes
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Consent Judgment for Attorneys Fees- Monroe County v. Sugarloaf Volunteer Fire Department
Incorporated Case No. CA-K-17-631 (11-22-21)
Settlement and Lease Agreement
FINANCIAL IMPACT:
Effective Date: N/A
Expiration Date: N/A
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
2753
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
2754
INTHECIR("11ITC10t j RT 011-11 IF 16'111 J1 JDI( IAL C I RCAJIT
IN AND FOR MONRO.L1 ("'Ot JNTY., FLORIDA
CASE NO. 2017-CA-63 I-K
BOARD 01" COUN]"Y CX)MMISSIONFIRS
OF MONROE.' ('(A.JNTY, a political
Subdivision of the State of Florida.
X rrl
-Or- C)
Plaintiff (.)rr
rim W
CD
IV
S(JGARI..,()Af-` KLA VOIJ I'l RU"
= rn
DE,A)ARTMEINT, INC., a not for r
p ofit :<C-
Florida corporation,
Def`cndant.
and
SUGARLOAFWI-FF INC., assignee of'
KFIYS WI-Fl, INC.,
Defendants.
('.ONSEN'I"' .JLJDGMEN'I' AWARDING ATTORNEYS FEES AND COSTS
IN FAVOR OF PLAINTIFF MONROE COUNTV
THIS CAUSE came bcf(.)rc the Court on the October 22, 2021, Motion filed by tile
Plaintiff, BOARD OFCOUN]"Y COMMISSIONIERS OFMONROE CIOUNTY ("Monroe
County"), seeking the entry of a judgment I or attorney*s fees and costs against the
Def:'endant, SU(iARLOAF KEA VO1,(iNTE14"R FIR L" DEPARTMI.,"NT, INC. (11'ire
Department"), afler the entry offlic Court's January 2, 2019, I'inal Declaratory ,judgi-nent
("Judgment") in, ftovor of'Monroe County, and the (.0L11't having review'ed the January 31,
2019, Motion tiled by the County seeking anorney's fees and costs against the Firc
2755
Department, and the Court having considered section 286.011(4), Florida Statutes (which
provides that "the court shall assess a reasonable attorney's fee against such agency," in a
lawsuit filed to invalidate the action ot'a governmental agency ilthe Court finds that the
agency violated the Chapter 286), and the Court having considered section 57.041, Florida
Statutes (which provides that costs are to be awarded to a"party recovering judgment"), and
the Court having been advised that the Fire Department does not contest the County's
entitlement or that the amount to be awarded Ior reasonable attorney's flees and costs in this
rnatter totals $217,159.86, and the Court being otherwise advised, it is
ORDERED AND ADJUDGED that.judgnient for attorney's Ices and costs is hereby
entered in Favor of* the BOARD 01-- COUN'FY COMM I SSI ON I-IRS OF MONROE
COI,JN'.I-'Y and against the SUGARLOAFKE'Y VOLUN'"IT"I.IR FIR]","DEPARTMENT,INC'.
for the sumo ot'$217,159.86.
DONE AND ORDERED in Chambers at Key West, Monroe County, Florida this
day of'November 2()21.
110 .A131 0
�1"'� TIMO] JYJ. KOENIG
Circuit Court .ludge
Confornied copics:
John Marston, Esq. (rnarston(" key west law.ncl-jtilic(�,)kc),Nvestgaw,ilet)
Anthony Conticello, Esq. (tconticeflo56( grnailxorn, I ony�'�iont ice I to law fin n,coin)
Lee Robert Rohe, 13sq, (Irrlawgbellsotjth.net; s1r( bellsouth.no)
Jeffrey L Hochman, Esq. (lioeliiiiati(�i.7janibg.coiii-, garrido(i an1bg.co rri)
Cynthia hall, Esq. (liall-cyiitliia(��ii,ioiii-oecouiity-il.gov)
2756
Final Execution Version 8-6-24
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Agreement"), dated as of the last date signed below, is
entered by MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida with a
principal address of 1100 Simonton Street, Key West, Florida 33040 ("LANDLORD"), and
SUGARLOAF WI-FI INC., a Florida corporation, with a Tax ID4 of 81-4891383 and a principal
address of 92300 Overseas Highway, Suite 203, Tavernier, Florida 33070 ("TENANT") (each a
"Parry" and collectively the "Parties").
WHEREAS,LANDLORD owns certain real property located at 17175 Overseas Highway,
Property ID 4 00117930-000100, on Sugarloaf Key in Monroe County, Florida, together with all
rights and privileges arising in connection therewith(collectively, the "Property"); and
WHEREAS, LANDLORD has undertaken a public-private development of a fire station
on the Property pursuant to section 255.065, Florida Statutes,bid#437-0-2022/LA, in conjunction
with private developer Fortress Secured, LLC ("Developer"); and
WHEREAS, TENANT desires to use a portion of the Property to construct a
Communications Facility, as defined below, in connection with its federally licensed
communications business; and
WHEREAS, LANDLORD desires to grant to TENANT the right to use a portion of the
Property in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein and for other good and valuable consideration, the Parties agree as follows:
1. Lease of Premises. LANDLORD leases to TENANT a certain portion of the
Property containing approximately 720 square feet as described on the attached Exhibit "A",
together with unrestricted access for TENANT's uses from the nearest public right-of-way along
the Property to the Premises as described on the attached Exhibit "A" (collectively, the
"Premises").
2. Permitted Use. TENANT shall use the Premises in accordance with this section
("Permitted Use"). TENANT may construct, maintain, and operate a communications tower and
associated structure, and uses incidental thereto, as determined by TENANT,now or in the future,
to meet TENANT's telecommunication needs, which may also include a security fence of chain
link or comparable construction that may, at the option of TENANT, be placed around the
perimeter of the Premises excluding the right-of-way (collectively, the "Communications
Facility"). All improvements, modifications, supplements,replacements,removals, or relocations,
that are necessary for TENANT's continued use, shall be made at TENANT's expense. In addition
to the Premises,LANDLORD grants TENANT the right to use such other portions of the Property
Page 1 of 18
2757
Final Execution Version 8-6-24
as are reasonably required during the construction and installation of the Communications Facility,
provided, however, that TENANT does not interfere with the construction or operation of the fire
station. TENANT shall maintain the Premises in a reasonable condition and shall be solely
responsible for the repair and maintenance of all of TENANT's improvements on the Premises,
excluding repair and maintenance due to the willful misconduct or gross negligence of the
LANDLORD, its employees, agents, or contractors or invitees. The Leased Premises and positions
on the Tower shall be used for, and LANDLORD agrees that TENANT is authorized to perform,
the installation, maintenance, and operation, all at TENANT's sole expense, of the necessary
equipment and associated antenna.
(a) Permitted Use includes TENANT's exclusive right to sublease space on the
Communications Facility and within the Premises to any provider licensed by the FCC. TENANT
will provide written notice to, but is not required to obtain the consent or the approval of,
LANDLORD regarding any such sublease.
(b)Permitted Use includes excavation of any portion of the Premises to install such
foundations as may be required for the Communications Facility.
(c) Permitted Use includes installation of flexible coaxial transmission lines
between components of the Communications Facility on the Premises.
3. Term.
(a) The initial term of this Agreement will be ten(10)years ("Initial Term"), commencing
upon the Commencement Date, as defined below, unless terminated sooner as provided in this
Agreement.
(b) This Agreement will automatically renew for a second ten (10) year term ("First
Renewal Term") and three(3)additional terms of five(5)years (each referred to as a"Subsequent
Renewal Term"),upon the same terms and conditions,unless Tenant chooses to terminate as noted
in this paragraph. Tenant may choose to terminate this Agreement, by providing LANDLORD
with written notice of its intention not to renew this Agreement at least three (3) months prior to
the expiration of the current term. TENANT has the sole choice to extend for additional Renewal
Terms as noted herein.
(c) If TENANT remains in possession of the Premises after the termination or expiration
of this Agreement then TENANT will be deemed to be occupying the Premises on a month-to-
month basis (the "Holdover Term"), subject to the terms and conditions of this Agreement.
(d) The Initial Term,the Renewal Term(s),and the Holdover Term are collectively referred
to as the Term ("Term").
Page 2 of 18
2758
Final Execution Version 8-6-24
4. Rent.
(a) Commencing on the date TENANT receives all necessary permits for construction of
its Communications Facility (the "Commencement Date"), TENANT will pay LANDLORD a
monthly rental payment of Five Hundred Dollars ($500.00) ("Rent") at the address set forth above
on or before the fifth (5th) day of each calendar month in advance. Rent will be prorated for any
partial month. TENANT will pay the initial Rent payment within thirty (30) days after the
Commencement Date.
(b) The Rent amount assumes that TENANT has up to one carrier or other user of its
Communications Facility. For each additional carrier or user, the monthly Rent will increase by
Four Hundred Dollars ($400.00).
(c) In each year after the first year of the Initial Term, the monthly Rent payable will
increase by three percent(3%) over the Rent payable during the previous year.
5. Governmental Approvals.
(a) TENANT's ability to use the Premises is contingent upon the suitability of the
Premises for the Permitted Use and TENANT's ability to obtain all governmental licenses,
permits, approvals or other relief required of or deemed necessary or appropriate by TENANT for
its use of the Premises, including without limitation applications for zoning variances, zoning
ordinances, amendments, special use permits, and construction permits (collectively, the
"Governmental Approvals"). LANDLORD authorizes TENANT to prepare, execute and file all
required applications to obtain Governmental Approvals for the Permitted Use and agrees to
reasonably assist TENANT with such applications. In addition, TENANT shall have the right to
initiate the ordering and/or scheduling of necessary utilities. TENANT is responsible for all
charges for utilities used or consumed by TENANT on the Premises.
(b) If during the Term TENANT is unable to use the Premises for a Communications
Facility in the manner intended by TENANT due to denial of Governmental Approvals, or due to
changes in previously granted Governmental Approvals, or if radio frequency propagation tests
are found to be unsatisfactory so that TENANT, in its sole discretion, will be unable to use the
Premises for a Communications Facility in the manner intended by TENANT, TENANT shall
have the right to terminate this Agreement upon written notice to LANDLORD.
(c) TENANT has the right to obtain a title report or commitment for a leasehold title
policy from a title insurance company of its choice and to have the Property surveyed by a surveyor
of TENANT's choice. In the event TENANT determines, in its sole discretion, due to the title
report results or survey results, that the condition of the Premises is unsatisfactory, TENANT will
have the right to terminate this Agreement upon written notice to LANDLORD.
Page 3 of 18
2759
Final Execution Version 8-6-24
(d) TENANT may also perform and obtain, at TENANT's sole cost and expense, soil
borings, percolation tests, engineering procedures, environmental investigation or other tests or
reports on, over, and under the Property,necessary to determine if TENANT's use of the Premises
will be compatible with TENANT's engineering specifications, system, design, operations or
Governmental Approvals,provided, however, that TENANT does not interfere with Developer or
construction or operation of the fire station.
(e) If TENANT terminates the Agreement under this section, LANDLORD shall retain all
Rent paid to LANDLORD prior to the termination date. Upon such termination, LANDLORD
and TENANT shall have no other further obligations to each other, other than TENANT's
obligation to remove its property as hereinafter provided.
6. Communication Interference and Resolution Process.
Both Parties shall comply with all applicable FCC guidelines and protocols to their
communication equipment and approved and authorized communications use.
(a) Landlord
LANDLORD shall at all times exercise the highest standard of care and judgment to
prevent interference with TENANT's Communications Facility and Permitted Use of the
Premises. LANDLORD agrees that LANDLORD will be permitted to install and use only
such approved and authorized communication equipment for LANDLORD's fire station and
public safety emergency communications or non-governmental functions, that is of the
approved and authorized type and frequency and that will not cause harmful interference
which is measurable in accordance with then existing industry standards to the then existing
communication equipment of TENANT. Furthermore, in the event LANDLORD desires to
add or replace its communication equipment in the future, such communication equipment
must be of the approved and authorized type and frequency which will not cause harmful
interference which is measurable in accordance with then existing industry standards to the
then existing communication equipment of TENANT on the Property. LANDLORD will use
its best efforts to notify TENANT in advance of the installation of any new communications
equipment, so TENANT, or its sublessees, have the opportunity to test for potential
interference.
(b) Tenant
TENANT shall at all times exercise the highest standard of care and judgment to
prevent interference with LANDLORD's existing authorized communication equipment used
for LANDLORD's fire station and public safety emergency services, and the provision of
such services. TENANT, and any of its sublessees (which must be FCC licensed), will install
communication equipment of the approved and authorized type and frequency which will not
cause harmful interference which is measurable in accordance with then existing industry
standards to any communication equipment LANDLORD is using on the Property prior to the
Page 4 of 18
2760
Final Execution Version 8-6-24
date this Lease. Furthermore, in the event TENANT, including any of its sublessees, desires
to add or replace communication equipment in the future, such communication equipment
must be of the approved and authorized type and frequency which will not cause harmful
interference which is measurable in accordance with then existing industry standards to the
then existing communication equipment of LANDLORD on the Property. After the initial
construction and installation of its Communications Facility, TENANT will notify
LANDLORD in advance of the installation of any new equipment and provide results of tests
demonstrating lack of potential interference.
(c) Third Party Interference
With regard to third party interference, each Party agrees to comply with applicable FCC
guidelines and protocols. Neither Parry, nor any FCC-licensed sublessee, shall be responsible for
communications interference caused by a person or entity not a Parry to this Lease or the sublessee,
whose communications have not been authorized by a Parry through a valid sublease or other
agreement.
(d) Notification Process
In the event a Party believes that the other Party, or its authorized sublessees,
communication equipment is causing interference with any authorized communications, the
Party will send a written notification of such interference and request to remedy ("Notice of
Potential Interference"). Upon receipt of the Notice of Potential Interference, the receiving
Party will take all commercially reasonable steps necessary to investigate, test and eliminate
any actual interference. Notwithstanding the foregoing, both Parties agrees to cooperate with
each other's efforts to locate the interference source and make a good faith effort to resolve
the interference in a manner that does not diminish each Party's authorized use. If TENANT
is the potential cause of interference, then TENANT must power down its Communication
Facility (or portion thereof, including sublessee portions) within 48 hours after receipt of
Notice of Potential Interference for testing, and if TENANT is the cause of interference it
must remedy the situation before resuming operation. In no event will either Party be entitled
to terminate this Agreement or deem a default under the Agreement, so long as the Party that
is potentially causing the interference is making a good faith effort to remedy the interference
issue.
(e) Interference Resolution Process —Unrelated Licensed Engineer
In the unlikely event that the Parties are unable to mutually resolve a potential
interference issue using the process as noted above, then within ten (10) calendar days after
the initial Notice of Potential Interference was delivered, TENANT will hire a neutral
unrelated licensed engineer that has expertise in communication to review, analyze, and
provide a written opinion to both Parties as to whether an interference exists, and if there is
interference what is the interference and what is/are the source(s). The designated licensed
engineer shall have ten (10) calendar days to complete this task and deliver its written
determinations. If there is interference found and the source is a Party, and not a third party
Page 5 of 18
2761
Final Execution Version 8-6-24
(which is governed by subsection (c) above), then the Party responsible for the interference
shall take immediate action to commence curing the interference.
7. Taxes. TENANT shall be responsible for making any necessary returns for and
paying any and all personal property taxes separately levied or assessed against TENANT's
facilities or the improvements constructed by TENANT on the Premises. Taxes are not to be
considered as additional Rent, but rather as reimbursement to LANDLORD and to be separately
billed. TENANT shall pay for any documented increase in ad valorem real estate taxes levied
against the Property which are directly attributable to the improvements constructed by TENANT
on the Property and are not separately levied or assessed by the taxing authorities against TENANT
or the improvements of TENANT. LANDLORD shall pay all other ad valorem real property taxes
levied against the Property on or before the date such taxes become delinquent. LANDLORD
hereby agrees that if the taxes which are levied against the LANDLORD and TENANT's
improvements on LANDLORD's property are incorrectly assessed, TENANT maintains the right
to appeal the tax assessment to the appropriate governmental authority, said appeal shall be paid
for by TENANT. Should any taxing authority with jurisdiction over the Property offer an early
payment tax incentive, LANDLORD hereby agrees that TENANT shall be allowed to pay the
taxes under the incentive plan which shall allow for TENANT to take advantage of any offered
incentives. LANDLORD shall furnish TENANT within thirty (30) days of receipt by
LANDLORD or LANDLORD's representative of the tax assessment for any assessed taxes which
are levied against the Property. LANDLORD'S ability to bill TENANT for said taxes is limited to
the current and previous two (2)years tax billing in question. In no event will LANDLORD have
the ability to bill for pro-rata share or estimates of taxes on future tax billings.
8. Insurance.
(a) TENANT shall, at is sole cost and expense, at all times during the term of this
Agreement maintain in effect a policy or policies of insurance (i) covering its personal property
located on the Premises and TENANT's improvements to the Premises paid for an installed by
TENANT, providing protection against any peril, except windstorm and flood, included under
insurance industry practices within the classification "fire and extended coverage," providing
protection as deemed desirable by TENANT with respect to its personal property and the full
insurable value of its TENANT improvements paid for by TENANT; and(ii)Commercial General
Liability insurance with minimum limits of $1,000,000 for injury to or death of one or more
persons and for damage to or destruction of properties in any one occurrence. In addition,
TENANT shall comply with the insurance provisions contained in Exhibit"B"to this Agreement.
(b) On or before the Commencement Date, and thereafter during the Term hereof,
TENANT shall provide LANDLORD with original, current Certificates of Insurance, and renewal
certificates of insurance thereafter, executed by a duly authorized representative of each insurer,
or by the insurance agent or broker authorized to do so, as evidence of all insurance policies. Said
Certificates of Insurance shall name the Monroe County Board of County Commissioners as an
Page 6 of 18
2762
Final Execution Version 8-6-24
Additional Insured and Certificate Holder. No insurance policy required hereunder may be
canceled, materially revised, or subject to non-renewal without at least thirty (30) calendar days
prior written notice being given to LANDLORD or, in the event of cancellation for non-payment
of premium,ten(10)days prior written notice.Developer shall provide LANDLORD with renewal
certificates of insurance or binders not less than five (5) business days prior to such expiration.
Insurance shall be maintained without lapse in coverage during the term of this Agreement.
LANDLORD shall also be given certified copies of TENANT's policies of insurance, upon
request.
(c) The required policies, and any policies of insurance procured by TENANT providing
coverage in excess of the required policies, shall provide that the coverage is primary for all
purposes and TENANT shall not seek any contribution from any insurance or self-insurance
maintained by LANDLORD. TENANT shall be solely responsible for any deductible or self-
insured retention on insurance required hereunder.
9. Sale of Property. If LANDLORD, at any time during the Term, decides to sell,
subdivide, or rezone the Property or any part of the to a purchaser other than TENANT,
LANDLORD shall promptly notify TENANT in writing, and such sale shall be subject to this
Agreement and TENANT's rights hereunder. LANDLORD agrees not to sell or lease any areas of
the Property for the installation, operation, or maintenance of other wireless communications
facilities. LANDLORD shall not be prohibited from the selling or leasing of any of Property for
non-wireless communication use.
10. Ouiet Enioyment. LANDLORD covenants that TENANT, on paying the Rent
and performing the covenants, terms and conditions required of TENANT contained herein, shall
peaceably and quietly have, hold and enjoy the Premises and the leasehold estate granted to
TENANT by virtue of this Agreement.
11. Assignment. This Agreement may be sold, assigned or transferred at any time by
TENANT to TENANT's parent company or any affiliate or subsidiary of TENANT or its parent
company or to any entity with or into which TENANT is merged or consolidated, or to any entity
resulting from a reorganization of TENANT or its parent company, or any other third party, upon
the prior written consent of LANDLORD, such consent not to be unreasonably withheld.
12. Condemnation. If notice is given to LANDLORD that the Property will be
condemned by any legally constituted public authority, then LANDLORD shall promptly notify
TENANT of such taking or condemnation. If the whole of the Property, or such portion thereof as
will make the Premises unusable by TENANT for Permitted Use, is condemned by any legally
constituted public authority,then this Agreement shall, at TENANT'S option, cease from the time
when possession thereof is taken by the public authority, and Rent shall be accounted for as
between LANDLORD and TENANT as of that date. However, nothing in this section shall be
construed to limit or adversely affect TENANT's right to seek an award of compensation from any
Page 7 of 18
2763
Final Execution Version 8-6-24
public authority that is seeking condemnation proceeding for the taking of TENANT's leasehold
interest hereunder or for the taking of TENANT's improvements, fixtures, equipment, and
personal property.
13. Hazardous Substances. LANDLORD believes,represents, and agrees that neither
LANDLORD nor, to the LANDLORD's knowledge, any third party has used, generated, stored,
or disposed of any Hazardous Materials in, on, or under the Property. "Hazardous Materials"
means petroleum or any petroleum product, asbestos, and any other substance, chemical, or waste
that is identified as hazardous, toxic, or dangerous in any applicable Federal, State, or local law,
rule, regulation, order or ordinance. TENANT shall indemnify, defend and hold LANDLORD
harmless from any and all claims, damages, fines,judgements,penalties, costs, liabilities or losses
from the presence or release of any Hazardous Materials on the Property if caused by TENANT
or persons acting under TENANT.
14. Opportunity to Cure.
(a)If TENANT should fail to pay any Rent or other amounts payable under this Agreement
when due, or if either Party should fail to perform any other material covenant, term, or condition
of this Agreement (other than section 6), prior to exercising any rights or remedies on account
thereof, the non-defaulting Party shall first provide the defaulting Party with written notice
specifying the nature of the default and provide the defaulting Parry with a thirty (30) day period
to cure such default if such default is a failure to pay rental or any other sum of money under this
Agreement, or a sixty (60) day period to cure such default if such default is a failure to perform
any other material covenant, term, or condition of this Agreement. If such default, other than a
failure to pay Rental or any other sum of money hereunder, is not capable of being cured within a
sixty (60)day period,the defaulting Parry shall be afforded a reasonable period of time to cure the
failure provided that defaulting Parry promptly commences curing the default after notice and
prosecutes the cure to completion with due diligence. This section's notice requirement and
opportunity to cure does not apply to instances of interference with communications, which are
governed by section 6.
(b) In the event that LANDLORD is in default of its obligations under this Agreement
and such default continues for thirty (30) days after written notice from TENANT, TENANT may
at its option and in any addition to any other right or remedy available hereunder, or at law or
equity incur reasonable expenses necessary to perform the obligation of LANDLORD specified in
such notice, and any amount paid by TENANT in so doing shall be deemed paid for the account
of LANDLORD, and LANDLORD agrees to reimburse TENANT therefor and TENANT may set
off from rent or other amounts due hereunder any reasonable amount expended by TENANT as a
result of such default.
15. Notices. Any notices or demands which are required by law or provided under the
terms of this Agreement shall be given or made by LANDLORD or TENANT in writing and shall
be given and addressed to the respective Parties set forth below. Such notices shall be deemed
Page 8 of 18
2764
Final Execution Version 8-6-24
received five (5) days after mailing. Every notice, demand, or request hereunder shall be sent to
the addresses listed below:
If to LANDLORD County Administrator
Monroe County
1100 Simonton Street,Room 2-205
Key West, FL 33040
With a copy to: County Attorney
Monroe County
1111 12th Street, Ste. 408
Key West, FL 33040
If to TENANT Edward Bie
497 20th Avenue
Indian Rocks Beach, FL 33785
With a copy to: James Byrne, Esq.
540 4th Street N
Saint Petersburg, FL 33701
Rejection or refusal to accept delivery of any notice, or the inability to deliver any notice because
of a changed address of which no notice was given, shall be deemed to be receipt of any such
notice.
16. Termination. After the fifth calendar year of this Agreement, and notwithstanding
any other termination rights available to TENANT under this Agreement, TENANT, at its sole
and absolute discretion, and without any cause required, shall have the right to terminate this
Agreement with ninety (90) days prior written notice to LANDLORD and a lump sum payment to
LANDLORD in an amount equal to six (6) months' of Rent. The Rent shall be computed at the
rate that is in effect at the time of termination. At termination, TENANT shall execute upon the
request of the LANDLORD a written cancellation of the Agreement in recordable form and
TENANT shall have no other further obligations, other than TENANT's obligation to remove its
property as hereinafter provided.
17. Removal of Improvements. Title to all improvements constructed or installed by
TENANT on the Premises shall remain with TENANT, and all improvements constructed or
installed by TENANT shall at all times be and remain the property of TENANT, regardless of
whether such improvements are attached or affixed to the Premises. TENANT, upon termination
of this Agreement, shall, within ninety (90) days,remove all improvements, fixtures, and personal
Page 9 of 18
2765
Final Execution Version 8-6-24
property constructed or installed on the Premises by TENANT and restore the Premises at grade
to substantially the same condition as received. TENANT shall not be required to remove any
foundations, driveways, or underground cables or wires below grade. If such removal causes
TENANT to remain on the Premises after termination of this Agreement, TENANT shall pay Rent
at the then existing monthly rate, or on the existing monthly pro rata basis if based upon a longer
payment term, until such time as the removal is completed.
18. Release and Cancellation. Upon termination of this Agreement and during
removal of improvements, TENANT shall execute, in a form acceptable to LANDLORD, an
express written release to LANDLORD. The express written release is to effectively terminate any
ingress / egress / utility or other easements used by TENANT for the operation of the
Communications Facility. Any easement, at LANDLORD's request, will be restored to previous
condition.
19. Miscellaneous. This Agreement cannot be modified except by a written
modification executed by LANDLORD and TENANT in the same manner as this Agreement is
executed. The headings, captions and numbers in this Agreement are solely for convenience and
shall not be considered in construing or interpreting any provision in this Agreement. Wherever
appropriate in this Agreement, personal pronouns shall be deemed to include other genders and
the singular to include the plural, if applicable. This Agreement contains all agreements,promises
and understandings between the LANDLORD and TENANT, and no verbal or oral agreements,
promises, statements, assertions or representations by LANDLORD or TENANT or any
employees, agents, contractors or other representations of either, shall be binding upon
LANDLORD or TENANT.
20. Security Interest. It is the intent of the Parties that neither Parry shall have a
security interest whatsoever in any personal property of the other Parry, and, to the extent that any
applicable statute, code, or law grants to a Parry such an interest, that Parry does hereby expressly
waive any rights thereto.
21. Attorney's Fees. In any proceeding which either Parry may prosecute to enforce
its rights hereunder, the prevailing Parry shall be entitled to an award reasonable attorneys' fees
and costs against the other Parry.
22. Governing Law. This Agreement shall be governed and interpreted by, and
construed in accordance with, the laws of the State of Florida where the Property is located. The
exclusive venue for any lawsuit arising in connection with this Agreement shall be the circuit court
of Monroe County, Florida.
22. Memorandum of Agreement. At the request of TENANT, LANDLORD agrees
to execute a memorandum or short form of this Agreement, in recordable form, setting forth a
description of the Property,the term of this Agreement and other information desired by TENANT
for the purpose of giving public notice thereof to third parties.
Page 10 of 18
2766
Final Execution Version 8-6-24
23. Binding Effect. This Agreement shall extend to and bind the heirs, personal
representatives, successors, and assigns of LANDLORD and TENANT and shall constitute
covenants running with the land.
24. Counterparts. This Agreement may be executed in several counterparts, each of
which shall constitute an original and all of which shall constitute the same Agreement.
25. Rental Stream Offer.If at any time after the date of this Agreement, LANDLORD
receives a bona fide written offer from a third party seeking an assignment of the rental stream
associated with this Agreement("Rental Stream Offer"), LANDLORD shall immediately furnish
TENANT with a copy of the Rental Stream Offer. TENANT shall have the right within twenty
(20) days after it receives such copy and representation to match the Rental Stream Offer and agree
in writing to match the terms of the Rental Stream Offer. Such writing shall be in the form of a
contract substantially similar to the Rental Stream Offer. If TENANT chooses not to exercise this
right or fails to provide written notice to LANDLORD within the twenty (20) day period,
LANDLORD may assign the rental stream pursuant to the Rental Stream Offer, subject to the
terms of this Agreement.
[signatures on following page]
Page 11 of 18
2767
Final Execution Version 8-6-24
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their
respective seals.
Signed, sealed and delivered in the presence of:
LANDLORD:
By:
Its:
Tax ID 4
Witness Witness
Print Name: Print Name:
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged ❑ IN PERSON or ❑ ONLINE, before me
this day of , 2024, by (print name)
who is personally known to me or who has produced as identification
and who did take an oath.
Notary Public
Print Name:
Page 12 of 18
2768
Final Execution Version 8-6-24
Signed, sealed and delivered in the presence of:
TENANT:
By:
Its:
Tax ID 4
Witness Witness
Print Name: Print Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged ❑ IN PERSON or ❑ ONLINE, before me
this day of , 2024, by (print name)
who is personally known to me or who has produced as identification
and who did take an oath.
Notary Public
Print Name:
Page 13 of 18
2769
Final Execution Version 8-6-24
EXHIBIT "A"
Proper located at 17175 Overseas Highway, Property ID 4 00117930-000100 (Premises
depicted in upper left corner and shown in greater detail on next page):
�r
u � ,
......---- _......
m .,
t� � ,
Jw +� wow i ry j ry w "roy0 s a: d
rw, r„a AAA M,
IW a a M 1
f�
M Wp✓�+ dYu n,W VF aW'od., �Wl �loin r �IM�4.:''O �. �4f � �.
,a
d W w
gym`I,o
»»»»>�x au�f rr nLr
di
4 m W(w
_ �4Ji vs
....�...................
m
M CAM,
fl 1 [[
.,.
-I--- -- ------w------- if u
iryL ry
w�M Q I
Page 14 of 18
2770
Final Execution Version 8-6-24
Premises leased to Tenant(720 sf):
TlE UNE
Syr , ""m xm,
W AC
z.......................... .........
JW11 I
1
A A IR F 01R 1145,AR E
FUTIURE 17E1EQ,,)RkM FACAtrry Aw,
4, ,nv
A,IN D EO, U F OAF,N 17(NJI C,p
4, 1100AL7215,S F
�4
IP o"I
OW 10: A
A ......................
v k,
4 lie,
/d "P
401
'le ah,
CINP:
E'll.,E �,p y'/', .............
e",W'r d�,vJor'
Page 15 of 18
2771
Final Execution Version 8-6-24
EXHIBIT `B"
Insurance Coverage
TENANT and all affiliates, sublessees, contractors, subcontractors, vendors, consultants
and agents ("Insureds") engaged in Permitted Uses shall procure and maintain for the duration of
the Agreement insurance against claims for injuries to persons or damages to property which may
arise from or in connection with the Permitted Uses.
Minimum Scope and Limit of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01
covering CGL on an"occurrence"basis property damage,bodily injury and personal&advertising
injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies,
either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or
25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering,
Code 1 (any auto), with limit no less than $1,000,000 per accident for bodily injury and property
damage; or, if Insured has no owned autos, it may endorse its CGL policy with Hired and Non
Owned coverage.
3. Workers' Compensation insurance as required by the State of Florida, with
Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per
accident for bodily injury or disease; or, if Insured is not required to obtain this coverage, it may
submit a letter on company letterhead to LANDLORD stating that it is not required and has elected
not to obtain this insurance.
If Insured maintains broader coverage and/or higher limits than the minimums shown
above,LANDLORD requires and shall be entitled to the broader coverage and/or the higher limits
maintained by Insured. Any available insurance proceeds in excess of the specified minimum
limits of insurance and coverage shall be available to LANDLORD.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
LANDLORD, its officers, officials, employees, and volunteers are to be covered as additional
insureds on the CGL policy with respect to liability arising out of work or operations performed
Page 16 of 18
2772
Final Execution Version 8-6-24
by or on behalf of the Insured including materials, parts, or equipment furnished in connection
with such work or operations. General liability coverage can be provided in the form of an
endorsement to the Insured's insurance(at least as broad as ISO Form CG 20 10 1185 or both CG
20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this Agreement, Insured's insurance coverage shall be primary insurance
primary coverage at least as broad as ISO CG 20 01 04 13 as respects LANDLORD, its officers,
officials, employees, and volunteers.Any insurance or self-insurance maintained by LANDLORD,
its officers, officials, employees, or volunteers shall be excess of the Insured's insurance and shall
not contribute with it.
Notice of Cancellation
Each insurance policy required above shall state that coverage shall not be canceled, except with
notice to LANDLORD.
Waiver of Subrogation
Insured hereby grants to LANDLORD a waiver of any right to subrogation which any insurer of
said Insured may acquire against LANDLORD by virtue of the payment of any loss under such
insurance. Insured agrees to obtain any endorsement that may be necessary to affect this waiver of
subrogation, but this provision applies regardless of whether or not LANDLORD has received a
waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by LANDLORD. LANDLORD may
require the Insured to provide proof of ability to pay losses and related investigations, claim
administration, and defense expenses within the retention. The policy language shall provide, or
be endorsed to provide,that the self-insured retention may be satisfied by either the named Insured
or LANDLORD.
Acceptability oflnsurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current
A.M. Best's rating of no less than ANII, unless otherwise acceptable to LANDLORD.
Claims Made Policies
If any of the required policies provide coverage on a claims-made basis:
1. The Retroactive Date must be shown and must be before the date of the contract or
the beginning of contract work,
2. Insurance must be maintained, and evidence of insurance must be provided for at
least five (5)years after completion of the contract of work, and
3. If coverage is canceled or non-renewed, and not replaced with another claims-made
Page 17 of 18
2773
Final Execution Version 8-6-24
policy form with a Retroactive Date prior to the contract effective date,the Insured must purchase
"extended reporting" coverage for a minimum of five (5)years after completion of contract work.
Verification of Coverage
Insured shall furnish County with original Certificates of Insurance including all required
amendatory endorsements (or copies of the applicable policy language effecting coverage required
by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all
policy endorsements to County before work begins. However, failure to obtain the required
documents prior to the work beginning shall not waive the Insured's obligation to provide them.
County reserves the right to require complete, certified copies of all required insurance policies,
including endorsements required by these specifications, at any time.
Page 18 of 18
2774