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HomeMy WebLinkAboutR-2021-005 Boisey Waiters Telecommunications Tower Lease Agreement with Crown Castle Towers 06-2 LLCRESOLUTION NO.2021-005 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, AUTHORIZING A LEASE AGREEMENT TO BE EXECUTED BETWEEN THE CITY OF DANIA BEACH, FLORIDA (CITY) AND CROWN CASTLE TOWERS 06-2 LLC, A DELAWARE LIMITED LIABILITY COMPANY ("LESSEE") TO INSTALL A TELECOMMUNICATIONS TOWER ON 3,600 SQUARE FEET OF THE PROPERTY KNOWN AS BOISEY WAITERS, AS FURTHER DESCRIBED IN ATTACHED EXHIBIT A; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Crown Castle Towers 06-2 LLC, a Delaware limited liability company ("Lessee"), currently has a lattice tower located on Dania Pointe property, and it needs to be relocated within several hundred feet of its current location; and WHEREAS, the City of Dania Beach is the owner of that parcel of land known as Boisey Waiters, and being further described in attached Exhibit "A," which is located across the street and south of Dania Pointe; and WHEREAS, Lessee) desires to lease 3,600 square feet of the City's property to install a telecommunications tower; and WHEREAS, the Lessee proposes a lease to the City for a ten year period, with four automatic additional terms of five (5) years each (each a "Renewal Term"); and WHEREAS, Lessee proposes to pay the City a Two -Thousand Dollars ($2,000.00) "Option Fee" within sixty (60) days of Lessee's execution of a lease Agreement, a copy of which agreement is attached to this Resolution as Exhibit B, which fee would be payment to the City for a twelve (12) month option period to lease the Leased Premises, on the terms and conditions set forth in the attached Agreement; and WHEREAS, Lessee will pay the City Thirty Thousand Dollars ($30,000.00) per year, to be paid in equal monthly installments of Two Thousand Five Hundred Dollars ($2,500.00) ("Rent"). After the first year of the Lease Term and every year thereafter (the "Adjustment Date"), the Rent shall increase by an amount equal to two -and -one half percent (2.5%) of the monthly rent in effect for the month immediately preceding the Adjustment Date; and WHEREAS, Lessee is also granted (i) an easement over such portion of the City's Property as is reasonably necessary to obtain or comply with any approvals, including any landscaping requirements; (ii) a twenty foot (20') wide portion of land for access, ingress, egress and for construction purposes including staging and storing of equipment, vehicles, cranes and materials seven (7) days per week, twenty-four (24) hours per day, for pedestrians and all types of motor vehicles, to extend from the nearest public right-of-way to the Leased Premises (which easement traverses two City parcels identified by the Broward County Property Appraiser as tax folio numbers 5142 04 00 0080 and 5142 04 00 0090); and (iii) a ten foot (10') wide utility easement (the "Utility Easement") for the installation, repair, replacement and maintenance of utility wires, poles, fiber, cables, conduits and pipes; and WHEREAS, the City desires to enter into the Lease Agreement; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the above "Whereas" clauses are ratified and confirmed, and they are made a part of and incorporated into this Resolution by this reference. Section 2. That the City Commission authorizes the execution of the attached Lease Agreement. Section 3. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 4. That this Resolution shall become effective upon its passage and adoption. PASSED and ADOPTED on January 12, 2021. ATTEST: THOMAS SCHNEIDER, CMC TAMARA JA ES CITY CLERK MAYOR �'ge[t5HE�1 APPROVED AS TO RM AND CORREC ESS: r THOMA J. ANS CITY ATTORNE 2 RESOLUTION #2021-005 EXHIBIT A TO CROWN CASTLE LEASE RESOLUTION Property Address 1399 Stirling Road Dania Beach FL 33020 Legal Description 4-51-42 W1/2 OF NW1/4 OF NE1/4 OF NE1/4 LESS PT DESC IN OR 1158/254 LESS PT TO C & SFFCD & LESS PT DESC IN OR 2465/277 & LESS RD Folio #:514204000080 Property Address 1399 Stirling Road Dania Beach FL 33004 Legal Description 4-51-42 THAT PT OF N 340 OF W1/2 OF NW1/4 OF NE1/4 OF NE1/4 LYING E OF THE FOL DESC LINE,COMM AT NE COR OF SEC 4,W ALG N/L 1013.0 TO POB,SLY 20 TO P/C,SWLY ARC DIST OF 179.07 TO P/T,SWLY 126,CONT SWLY ALG E RM//L OF C-10 CANAL TO INTERSEC WITH S/L OF NW1/4 OF NE1/4 OF NE1/4,AND END OF SAID LINE,LESS N 120 THEREOF Folio #:514204000090 RESOLUTION #2021-005 RESOLUTION #2021-005 OPTION AND GROUND LEASE AGREEMENT THIS OPTION AND GROUND LEASE AGREEMENT (the "Agreement") is made effective this day of , 2020 ("Effective Date"), by and between the CITY OF DANIA BEACH, f/k/a CITY OF DANIA, f/k/a TOWN OF DANIA, a municipal corporation ("Lessor") and CROWN CASTLE TOWERS 06-2 LLC, a Delaware limited liability company ("Lessee"). • Lessor's Property. Lessor's Property shall refer to the parcel of land located in the City of Dania Beach, County of Broward, State of Florida, as shown on the Tax Map of said County as Tax Parcel Number 5142 04 00 0080, being further described on Exhibit "A". • Leased Premises. Leased Premises shall refer to that portion of Lessor's Property consisting of a parcel of approximately 3,600 square feet as described in the sketch attached hereto as Exhibit "B". The boundaries of the Leased Premises may be subject to modification as set forth in Section 7. • Grant of Option to Lease. In consideration of Two -Thousand Dollars ($2,000.00) ("Option Fee") to be paid by Lessee to Lessor within sixty (60) days of Lessee's execution of this Agreement, Lessor hereby grants to Lessee the Option, for a period of twelve (12) months, commencing on the Effective Date ("Option Period"), to lease the Leased Premises, on the terms and conditions set forth in this Agreement. • Due Diligence Investigation. o Inspection Rights. During the Option Period and the Lease Term, Lessee shall have the right to analyze the suitability of the Leased Premises for its intended use. Lessee and its employees, agents, contractors, engineers, and surveyors shall have the right to enter upon Lessor's Property to inspect, conduct, perform and examine soil borings, drainage testing, material sampling, surveys and other geological or engineering tests or studies of Lessor's Property, to apply for and obtain all licenses and permits required for Lessee's use of the Leased Premises from all applicable governmental or regulatory entities, and to do those things on Lessor's Property that, in the sole opinion of Lessee, are necessary to determine the physical condition of Lessor's Property, the environmental history of Lessor's Property, Lessor's title to Lessor's Property and the feasibility or suitability of the Leased Premises for Lessee's use as defined in this Agreement, all at Lessee's expense (the "Due Diligence"). Activities conducted in connection with Lessee's Due Diligence shall not be deemed to constitute exercise of the Option or commencement of construction of the Improvements, as defined in Section 12. Upon completion of Lessee's Due Diligence activities, Lessee shall promptly restore Lessor's Property to its prior condition, reasonable wear and tear excepted. o Temporary Access Road and Easement for Due Diligence. To facilitate Lessee's Due Diligence, Lessor hereby grants Lessee and its employees, agents, contractors, engineers and surveyors the right, and an easement to construct and use a temporary pedestrian and vehicular access roadway from a public road, RESOLUTION #2021-005 across Lessor's Property, to the Leased Premises. The location of said temporary pedestrian and vehicular access roadway on Lessor's Property is shown on Exhibit "B". Such construction shall not be deemed to constitute exercise of the Option or commencement of construction of the Improvements, as defined in Section 12, herein. • Extension, Termination and Exercise of Option. o Right to Extend Option Period. If the Option is not exercised or terminated by Lessee during the Option Period, the Option shall be automatically extended for one (1) additional one (1) year period (the "Option Renewal Period") unless the Option is exercised or terminated by Lessee in accordance with the terms of this Agreement. Lessee shall pay Lessor the amount of Three Thousand Dollars ($3,000.00) ("Option Extension Fee") within sixty (60) days of the commencement of the Option Renewal Period. o Right to Terminate Option. Lessee shall have the right to terminate this Agreement at any time prior to the expiration of the Option Period or any Option Renewal Period, by sending written notice of termination to Lessor. o Expiration of Option Period. If, upon expiration of the Option Period or any Option Renewal Period, Lessee has not exercised the Option, this Agreement shall terminate. Upon such termination, neither party shall have any further rights or duties hereunder. Lessor shall retain the Option Fee and any Option Extension Fee previously paid. o Exercise of Option. Prior to expiration of the Option Period or any Option Renewal Period, Lessee may exercise the Option by either (i) providing written notice to Lessor of such exercise or (ii) commencing construction of the Improvements. Upon the first day of the month following such exercise ("Commencement Date"), the Lease Term, as defined in Section 9 herein, shall commence and the Easements, as defined in Section 8, shall become effective. • Lessor's Cooperation. During the Option Period, any Option Renewal Period, and the Lease Term, Lessor shall: (i) cooperate with Lessee in its efforts to perform its Due Diligence and to obtain all of the certificates, permits, licenses and other approvals that Lessee, in its sole discretion, deems necessary for its intended use of the Leased Premises ("Approvals"), including all appeals; and (ii) take no action that would adversely affect the Leased Premises. Lessor acknowledges that Lessee's ability to use the Leased Premises is contingent upon Lessee obtaining and maintaining the Approvals. Additionally, Lessor grants to Lessee and its employees, representatives, agents, and consultants a limited power of attorney to prepare, execute, submit, file and present on behalf of Lessor building, permitting, zoning or land -use applications with the appropriate local, state and/or federal agencies necessary to obtain land use changes, special exceptions, zoning variances, conditional use permits, special use permits, administrative permits, construction permits, operation permits and/or building permits. Lessor understands that any such application and/or the satisfaction of any requirements thereof may require Lessor's cooperation, which Lessor hereby agrees to provide. Lessor shall not do or permit anything that will interfere with or negate any Approvals pertaining to the Improvements 6 RESOLUTION #2021-005 or Leased Premises or cause them to be in nonconformance with applicable local, state or federal laws. Lessor agrees to execute such documents as may be necessary to obtain and thereafter maintain the Approvals, and agrees to be named as the applicant for said Approvals. • Leased Premises; Survey. Following exercise of the Option, Lessee shall provide Lessor with a copy of a boundary survey, which shall depict and identify the boundaries of the Leased Premises and the Easements, and replace and supersede the sketch attached hereto as Exhibit "B" (the "Survey"). The Survey shall be deemed to be incorporated into this Agreement as Exhibit "C" even if not physically affixed hereto. The description of the Leased Premises set forth in Exhibit "C" shall control in the event of discrepancies between Exhibit "B" and Exhibit "C". The Survey will be obtained within sixty (60) days of Lessee's exercise of the Option. • Easements. Effective on the Commencement Date, Lessor grants the following easements and rights -of -way over, under and upon Lessor's Property to Lessee, Lessee's employees, agents, contractors, sublessees, licensees and their employees, agents and contractors: (i) an easement over such portion of Lessor's Property as is reasonably necessary to obtain or comply with any Approvals, including any landscaping requirements therein; (ii) a twenty foot (20') wide easement in the location shown in Exhibit "B", as may be amended by Exhibit "C", for access, ingress, egress and for construction purposes including staging and storing of equipment, vehicles, cranes and materials seven (7) days per week, twenty-four (24) hours per day, for pedestrians and all types of motor vehicles, to extend from the nearest public right-of-way to the Leased Premises; and (iii) a ten foot (10') wide utility easement (the "Utility Easement") in the location shown in Exhibit "B", as may be amended by Exhibit "C", for the installation, repair, replacement and maintenance of utility wires, poles, fiber, cables, conduits and pipes; provided that in the event that any public utility is unable or unwilling to use the Utility Easement in the location shown in Exhibit "B", as may be amended by Exhibit "C", at the sole option of Lessee Lessor shall grant an alternate easement either to Lessee or directly to the public utility at no cost and in a location acceptable to Lessee and the public utility; as shown in Exhibit "B", as may be amended by Exhibit "C" (collectively, the "Easements"). TO HAVE AND TO HOLD the Easements for the purposes provided during the Lease Term and thereafter within the allowable period(s) set forth in Section 31 of this Agreement, for Lessee to remove its Improvements. At no time shall Lessee leave any type of motor vehicle overnight within the Easements, except as may be necessary during the initial construction of the Improvements, without Lessor's written consent. • Lease Term. Effective upon the Commencement Date, Lessor leases the Leased Premises to Lessee for a period of ten (10) years ("Initial Term"). This Agreement shall automatically be extended for four (4) additional terms of five (5) years each (each a "Renewal Term") (the Initial Term and Renewal Terms are together the "Lease Term"), unless this Agreement is terminated pursuant to the provisions set forth herein. • Lessee's Right to Terminate; Effect of Termination by Lessee. Lessee shall have the right, following its exercise of the Option, to terminate this Agreement, at any time, without cause, by providing Lessor with one hundred eighty (180) days' prior written notice. Upon such termination, this Agreement shall become null and void and neither party shall have any further 7 RESOLUTION #2021-005 rights or duties hereunder, except that any monies owed by either party to the other up to the date of termination shall be paid within thirty (30) days of the termination date. • Rent. Beginning on the Commencement Date, Lessee shall pay Lessor Thirty Thousand Dollars ($30,000.00) per year, to be paid in equal monthly installments of Two Thousand Five Hundred Dollars ($2,500.00) ("Rent"). The first payment of Rent shall be due and payable on the first day of the first full month following the Commencement Date. After the first year of the Lease Term and every year on the anniversary of the Commencement Date thereafter (the "Adjustment Date"), the Rent shall increase by an amount equal to two and one half percent (2.5%) of the monthly rent in effect for the month immediately preceding the Adjustment Date. • Use of Property. The Leased Premises and the Easements shall be used for the purpose of (i) constructing, maintaining, and operating communications facilities, including without limitation, tower structures, antenna support structures, fencing, cabinets, meter boards, buildings, antennas, radios, cables, fiber, data storage systems and related communications equipment ("Improvements") and, (ii) any uses incidental thereto, including without limitation, use of back-up power systems, and installation of equipment to accommodate new technologies or future innovations for receiving, storing and transmitting signals for Lessee's use and the use of its sublessees, licensees customers, or invitees (collectively the "Permitted Use"). Lessee may place a security fence, around the perimeter of the Leased Premises. All Improvements shall be constructed at Lessee's sole expense. Lessee will maintain the Leased Premises in a safe condition. It is the intent of the parties that Lessee's Improvements shall not constitute a fixture. • Hazardous Materials. o Obligation and Indemnity. Neither party shall (either with or without negligence) cause or permit the escape, disposal or release of any Hazardous Materials on or from the Leased Premises or the Lessor's Property in any manner prohibited by law. Lessee shall indemnify and hold harmless Lessor from any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, and consultants' and experts' fees) from the release of any Hazardous Materials on the Leased Premises if caused by Lessee or persons acting under Lessee, and Lessor shall indemnify and hold harmless Lessee from any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, and consultants' and experts' fees) from the release of any Hazardous Materials on Lessor's Property if caused by Lessor or persons acting under Lessor. o For purposes of this Agreement, the term "Hazardous Materials" means any substance which is (i) designated, defined, classified or regulated as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, as currently in effect or as hereafter amended or enacted, (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) asbestos, (vi) flammable explosives, (vii) infectious materials, or (viii) radioactive materials. `Environmental Laws" means the Comprehensive Environmental Response, Compensation, and Liability 8 RESOLUTION 92021-005 Act of 1980, 42 U.S.C. Sections 9601, et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. 5101, et seq., and the Clean Water Act, 33 U.S.C. Sections 1251 et seq., as said laws have been supplemented or amended to date, the regulations promulgated pursuant to said laws and any other federal, state or local law, statute, rule, regulation or ordinance which regulates or proscribes the use, storage, disposal, presence, clean-up, transportation or release or threatened release into the environment of Hazardous Materials. Insurance. o At all times during the performance of its Due Diligence Investigation and during the Lease Term, Lessee, at its sole expense, shall keep in force insurance which may be required by any federal, state or local statute or ordinance of any governmental body having jurisdiction in connection with the operation of Lessee's business upon the Leased Premises, but in no event shall Lessee carry less than the following minimum coverages and minimum limits: commercial general liability insurance (CGL) with respect to its activities on the Lease Premises, with an occurrence limit of no less than Two Million Dollars ($2,000,000) and a general aggregate limit of no less than Four Million Dollars ($4,000,000) written on the most recent edition of Insurance Services Office, Inc. ("ISO") Form CG 00 01 or a substitute form providing substantially equivalent coverage. The limits requirement may be met by a combination of primary and excess liability policies that also apply to other locations; and business automobile liability insurance with a combined single limit of no less than $1,000,000; workers' compensation insurance as required by law; and employers liability insurance with the following minimum limits: $1,000,000 each accident for bodily injury by accident, $1,000,000 each employee for bodily injury by disease, and $1,000,000 for bodily injury by disease for entire policy. All policies must be issued by carriers having an A.M. Best's Policy Holder Rating of A minus or better (or in the event that Best's Insurance Guide is no longer published, such subsequent or substitute rating service as shall be selected by Lessor and agreed to by Lessee) and eligible to provide insurance in the State where the Leased Premises is located. 9 RESOLUTION #2021-005 Lessor shall be named additional insured under the commercial general liability and automobile liability policies and upon request, Lessee shall provide Lessor with a copy of the certificate of insurance evidencing such insurance coverage. Lessee shall provide at least thirty (30) days' prior written notice to Lessor in case of cancellation of any required coverage that is not replaced, except for cancellation due to non-payment of premium. o Insurance Required Before Commencement of Work: Lessee shall not commence work under this Agreement on the Leased Premises by its own employees or those of any contractor or subcontractor until Lessee has obtained all insurance required under this Section 14. In addition, Lessee shall be responsible for any and all policy deductibles and self -insured retentions. o In the event insurance certificates provided to Lessor indicate that the insurance shall terminate and lapse during the Lease Term, then in that event, Lessee shall furnish, at least five (5) days prior to the expiration date of such insurance, a renewed Certificate of Insurance as proof that equal and like coverages for the balance of the Lease Term. o Umbrella or Excess Liability policies are acceptable to provide the total required liability limits required hereunder. Lessor must approve any changes to these specifications and has the right to review and request in writing amendments to coverage requirements. The Lessee shall be held responsible for any modifications, deviations, or omissions in these insurance requirements. Lessee shall be responsible for any deductible amounts. o The commercial general liability insurance shall include the following: o Annual Aggregate shall apply "Per Policy"; o "The City of Dania Beach, Florida" is added as a named "Additional Insured"; ■ Additional insured coverage shall be no more restrictive than Insurance Services Office (ISO) form CG 2037 (07 04); ■ Lessee's insurance shall be primary and non- contributory; ■ Waiver of subrogation in favor of the Lessor; ■ 30 days' notice of cancellation to Lessor (if not available on the insurance policies, then Lessee has responsibility for notification) except for non-payment of premium; and ■ Copy of Additional Insured Endorsement or other endorsements may be attached to the Certificate. 10 RESOLUTION #2021-005 o Worker's compensation insurance shall be maintained by Lessee as well as any sublessees, contractors and subcontractors during the Lease Term, and it is to apply to all "statutory employees" of Lessee (as that phrase is defined by Chapter 440, Florida Statutes), in compliance with the "Workers' Compensation Law" of the State of Florida and all applicable federal laws, for the benefit of the Lessee, its employees, and sublessees. In the case any of Lessee's contractors or subcontractors perform any work on the Leased Premises, such contractors or subcontractors shall be required to provide the same workers' compensation insurance for their employees, in addition to any coverage provided by Lessee, by furnishing Statutory Limits Part A, and no less than One Million Dollars ($1,000,000.00) Employers' Liability Limits Part B. • Removal of Obstructions. Lessee has the right to remove obstructions from Lessor's Property, including but not limited to vegetation, which may encroach upon, interfere with or present a hazard to Lessee's use of the Leased Premises or the Easements. • Right of First Refusal. If during the Option Period or Lease Term, Lessor receives an offer that it intends to accept from any person or entity that owns towers or other wireless telecommunications facilities (or is in the business of acquiring Lessor's interest in this Agreement) to purchase fee title, an easement, a lease, a license, or any other interest in the Lessor's Property, or Lessor's interest in this Agreement, or an option for any of the foregoing, Lessor shall provide written notice to Lessee of said offer, and Lessee shall have a right of first refusal to acquire such interest on the same terms and conditions in the offer, excluding any terms or conditions which are (i) not imposed in good faith or (ii) directly or indirectly designed to defeat or undermine Lessee's possessory or economic interest in the Leased Premises. If Lessor's notice covers portions of Lessor's parent parcel beyond the Leased Premises, Lessee may elect to acquire an interest in only the Leased Premises, and the consideration shall be pro- rated on an acreage basis. Lessor's notice shall include the prospective buyer's name, the purchase price and/or other consideration being offered, the other terms and conditions of the offer, the due diligence period, the proposed closing date and, if a portion of Lessor's parent parcel is to be sold, leased or otherwise conveyed, a description of said portion. If the Lessor's notice shall provide for a due diligence period of less than sixty (60) days, then the due diligence period shall be extended to be sixty (60) days from exercise of the right of first refusal and closing shall occur no earlier than fifteen days thereafter. If Lessee does not exercise its right of first refusal by written notice to Lessor given within thirty (30) days, Lessor may convey the property as described in the Lessor's notice. If Lessee declines to exercise its right of first refusal, then this Agreement shall continue in full force and effect and Lessee's right of first refusal shall survive any such conveyance. Lessee shall have the right, at its sole discretion, to assign the right of first refusal to any person or entity, either separate from an assignment of this Agreement or as part of an assignment of this Agreement. Such assignment may occur either prior to or after Lessee's receipt of Lessor's notice and the assignment shall be effective upon written notice to Lessor. • Real Estate Taxes. Lessor shall pay all real estate taxes on Lessor's Property, provided that Lessee shall be responsible to reimburse Lessor for any documented increase in real estate or personal property taxes that are directly attributable to the Improvements constructed by Lessee. Lessor agrees to provide Lessee any documentation evidencing the increase and how such 11 RESOLUTION #2021-005 increase is attributable to Lessee's use. Lessee reserves the right to challenge any such assessment, and Lessor agrees to cooperate with Lessee in connection with any such challenge. Notwithstanding any language in this section to the contrary, Lessee shall not be obligated to reimburse Lessor for any applicable taxes, unless Lessor requests such reimbursement, and provides Lessee with documentation supporting any such payment(s), within one (1) year after the date such taxes became due. • Waiver of Claims and Rights of Subrogation. The parties hereby waive any and all rights of action for negligence against the other on account of damage to the Improvements, Lessor's Property or to the Leased Premises resulting from any fire or other casualty of the kind covered by property insurance policies with extended coverage, regardless of whether or not, or in what amount, such insurance is carried by the parties. All policies of property insurance carried by either party for the Improvements, Lessor's Property or the Leased Premises shall include a clause or endorsement denying to the insurer rights by way of subrogation against the other party to the extent rights have been waived by the insured before the occurrence of injury or loss. • Default. o Notice of Default; Cure Period. In the event that there is a default by Lessor or Lessee (the "Defaulting Party") with respect to any of the provisions of this Agreement or Lessor's or Lessee's obligations under this Agreement, the other party (the "Non -Defaulting Party_") shall give the Defaulting Party written notice of such default. After receipt of such written notice, the Defaulting Party shall have thirty (30) days in which to cure any monetary default and sixty (60) days in which to cure any non -monetary default. The Defaulting Party shall have such extended periods as may be required beyond the sixty (60) day cure period to cure any non -monetary default if the nature of the cure is such that it reasonably requires more than sixty (60) days to cure, and Defaulting Party commences the cure within the sixty (60) day period and thereafter continuously and diligently pursues the cure to completion. The Non -Defaulting Party may not maintain any action or effect any remedies for default against the Defaulting Party unless and until the Defaulting Party has failed to cure the same within the time periods provided in this Section. o Consequences of Lessee's Default. Lessor acknowledges that under the terms of this Agreement, Lessee has the right to terminate this Agreement at any time upon one hundred eighty (180) days' notice. Accordingly, in the event that Lessor maintains any action or effects any remedies for default against Lessee, resulting in Lessee's dispossession or removal, (i) the Rent shall be paid up to the date of such dispossession and removal and (ii) Lessor shall be entitled to recover from Lessee, in lieu of any other damages, as liquidated, final damages, a sum equal to three months' Rent. o Consequences of Lessor's Default. In the event that Lessor is in default beyond the applicable periods set forth above, Lessee shall have the right to injunctive relief, to require specific performance of this Agreement, to pursue an action for damages, terminate this Agreement, vacate the Leased Premises, and be relieved 12 RESOLUTION #2021-005 from all further obligations under this Agreement; and to perform the obligation(s) of Lessor specified in such notice, and charge Lessor for any expenditures reasonably made by Lessee in so doing or set-off from Rent any amount reasonably expended by Lessee as a result of such default. • Limitation on Damages. In no event shall either party be liable to the other for consequential, indirect, speculative or punitive damages in connection with or arising from this Agreement, or the use of the Leased Premises, Easements, and/or Utility Easement. • Hold Harmless. Each party shall indemnify and defend the other party against, and hold the other party harmless from, any claim of liability or loss from personal injury or property damage arising from the use and occupancy of the Leased Premises or Lessor's Property by such indemnifying party, its employees, contractors, servants or agents, except to the extent such claims are caused by the intentional misconduct or negligent acts or omissions of the other party, its employees, contractors, servants or agents. Nothing in this Agreement shall be deemed or treated as a waiver by the Lessor of any immunity to which it is entitled by law, including but not limited to the Lessor's sovereign immunity as set forth in Section 768.28, Florida Statutes. • Lessor's Covenant of Title. Lessor covenants that Lessor holds good and marketable fee simple title to Lessor's Property and the Leased Premises and has full authority to enter into and execute this Agreement. • Interference with Lessee's Business. Lessor agrees that it will not permit the construction, installation or operation on Lessor's Property of (i) any additional wireless communications facilities or (ii) any equipment or device that interferes with Lessee's use of the Leased Premises for a wireless communications facility. Each of the covenants made by Lessor in this Section is a covenant running with the land for the benefit of the Leased Premises. • Eminent Domain. If Lessor receives notice of a proposed taking by eminent domain of any part of the Leased Premises or the Easements, Lessor will notify Lessee of the proposed taking within five (5) days of receiving said notice and Lessee will have the option to: (i) declare this Agreement null and void and thereafter neither party will have any liability or obligation hereunder; or (ii) remain in possession of that portion of the Leased Premises and Easements that will not be taken, in which event there shall be an equitable adjustment in Rent on account of the portion of the Leased Premises and Easements so taken. With either option Lessee shall have the right to pursue all available remedies at law or equity. • Applicable Law and Venue. All claims, counterclaims, disputes and other matters in question between the Lessor and Lessee arising out of, relating to or pertaining to this Agreement, or the breach of it, or the services of it, or the standard of performance required in it, shall be addressed by resort to non -binding mediation as authorized under the laws and rules of Florida. For any legal action arising out of or pertaining to this Agreement shall be the Circuit Court for the Seventeenth Judicial Circuit in and for Broward County, Florida, or the federal District Court in the Southern District of the United States. Each party further agrees that venue of any action to enforce this Agreement shall be in Broward County, Florida. In any litigation, the parties agree to each waive any trial by jury of any and all issues. In the event of any 13 RESOLUTION #2021-005 litigation which arises out of, pertains to, or relates to this Agreement, or the breach of it, or the standard of performance required in it, each party shall bear its own attorney fees and costs. • Notices. All notices hereunder shall be in writing and shall be given by (i) established national courier service which maintains delivery records, (ii) hand delivery, or (iii) certified or registered mail, postage prepaid, return receipt requested. Notices are effective upon receipt, or upon attempted delivery if delivery is refused or if delivery is impossible because of failure to provide reasonable means for accomplishing delivery. The notices shall be sent to the parties at the following addresses: Lessor: Lessee: City of Dania Beach 100 W Dania Beach Blvd Dania Beach, FL 33004 Crown Castle Towers 06-2 LLC Attn: Legal -Real Estate 2000 Corporate Drive Canonsburg, PA 15317-8564 • Assignment, Sublease, Licensing and Encumbrance. Lessee has the right, with written notice to Lessor, to assign its interest in this Agreement and to sublease or license use of the Leased Premises, Easements and Improvements. Assignment of this Agreement by Lessee shall be effective upon Lessee sending written notice to Lessor and shall relieve Lessee from any further liability or obligation. Lessee has the further right to pledge or encumber its interest in this Agreement. Upon request to Lessor from any leasehold mortgagee, Lessor agrees to give the holder of such leasehold mortgage written notice of any default by Lessee and an opportunity to cure such default within fifteen (15) days after such notice with respect to monetary defaults and within a commercially reasonable time after such notice with respect to any non -monetary default. Any assignment of this Agreement requires that the assignee comply with all insurance provisions required in this Agreement, and any assignment will not be effective until the assignee provided Lessor with the insurance certificates required under this Agreement. • Mortgages. In the event that the Leased Premises is currently encumbered or shall become encumbered by such a mortgage, Lessor shall obtain and furnish to Lessee a non - disturbance agreement for each such mortgage, in recordable form. • Sale of Property. If during the Option Period, any Option Renewal Period, or Lease Term, Lessor sells all or part of Lessor's Property, of which the Leased Premises is a part, then such sale shall be under and subject to this Agreement. • Surrender of Property. Upon expiration or termination of this Agreement, Lessee shall, within six (6) months, remove all above ground Improvements and restore the Leased Premises as nearly as reasonably possible to its original condition, without, however, being required to replace any trees or other plants removed, or alter the then existing grading. Within thirty (30) 14 RESOLUTION #2021-005 days of the Commencement Date, Lessee shall obtain and provide to Lessor a removal bond in favor of Lessor in the amount of Fifty Thousand and No/100 Dollars ($50,000.00) from a surety company duly licensed to do business in the state of Florida (the "Bond"). The Bond shall secure Lessee's removal of the Improvements from the Leased Premises in accordance with the terms of this Agreement. • Quiet Enioyment. Lessor covenants that Lessee, on paying Rent and performing the covenants of this Agreement, shall peaceably and quietly have, hold and enjoy the Leased Premises and Easements. Lessor may develop the remainder of Lessor's Property as a park or for another civic use, provided such development and use shall not interfere with use of the Leased Premises by Lessee in accordance with this Agreement. • Lessor's Waiver. Lessor hereby waives and releases any and all liens, whether statutory or under common law, with respect to any of Lessee's Improvements now or hereafter located on the Leased Premises. • Miscellaneous. Recording. Lessee shall have the right to record a memorandum of the Option and a memorandum of this Agreement with the appropriate recording officer. Lessor shall execute and deliver each such memorandum, for no additional consideration, promptly upon Lessee's request. Entire Agreement. Lessor and Lessee agree that this Agreement contains all of the agreements, promises and understandings between Lessor and Lessee. No oral agreements, promises or understandings shall be binding upon either Lessor or Lessee, or any assignee, in any dispute, controversy or proceeding at law. Any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the parties hereto. The terms, covenants and provisions of this Agreement shall extend to and be binding upon the respective executors, administrators, heirs, successors and assigns of Lessor and Lessee. Ca tp ions. The captions preceding the Sections of this Agreement are intended only for convenience of reference and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof. Construction of Document. Lessor and Lessee acknowledge that this document shall not be construed in favor of or against the drafter by virtue of said party being the drafter and that this Agreement shall not be construed as a binding offer until signed by Lessee. Partial Invalidity. If any term of this Agreement is found to be void or invalid, then such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. Counterparts. This Agreement may be executed simultaneously or in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. 15 RESOLUTION 42021-005 Electronic Signatures. Each party agrees that the electronic signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. As used herein, "electronic signature" means any electronic sound, symbol, or process attached to or logically associated with this Agreement and executed and adopted by a party with the intent to sign such Agreement, including facsimile or email electronic signatures. IRS Form W-9. Lessor agrees to provide Lessee with a completed IRS Form W-9, or its equivalent, upon execution of this Agreement and at such other times as may be reasonably requested by Lessee. In the event the Lessor's Property is transferred, the succeeding Lessor shall have a duty at the time of such transfer to provide Lessee with a Change of Ownership Form as provided for by Lessee, a completed IRS Form W-9, or its equivalent, and other related paper work to effect a transfer in Rent to the new Lessor. Lessor's failure to provide the IRS Form W-9 within thirty (30) days after Lessee's request shall be considered a default and Lessee may take any reasonable action necessary to comply with IRS regulations including, but not limited to, withholding applicable taxes from Rent payments. 34. Revenue Share. (A) In addition to the Rent to be paid by Lessee to Lessor pursuant to this Agreement, if, after the Commencement Date, Lessee subleases, licenses or grants a similar right of use or occupancy in the Leased Premises (each a "Sublease") to an unaffiliated third party collocator (each a "Collocator"), Lessee agrees to pay to Lessor twenty percent (20%) of the rental payments actually received by Lessee from such Collocator (excluding any reimbursement of taxes, construction costs, installation costs, revenue share reimbursement or other expenses incurred by Lessee) (the "Revenue Share") within thirty (30) days after receipt of said payments by Lessee. Non-payment of such rental, license or other similar payment by a Collocator shall not be an event of default under this Agreement. Lessee shall have sole discretion as to whether, and on what terms, to sublease, license or otherwise allow occupancy of the Leased Premises and there shall be no express or implied obligation for Lessee to do so. If any such Sublease with a Collocator expires or terminates for any reason, Lessee shall no longer be obligated to pay the Revenue Share for such Sublease. Notwithstanding the foregoing, the parties agree that Lessee's obligation to pay Revenue Share to the Lessor applies only to the fourth (4t') and subsequent Collocators. No Additional Rent will be paid to Lessor in the event that there are three (3) or fewer total Collocators on the Leased Premises. (B) For each Collocator with which Lessee enters into a Sublease, Lessee shall pay to Lessor within thirty (30) days after the full execution of each such Sublease a one-time payment of Five Thousand Dollars ($5,000.00). 35. Tower Design. The tower structure to be constructed on the Leased Premises should the Option be exercised must be of stealth design. Lessor must provide written approval of the tower designs before Lessee applies for zoning approval. Such approval by Lessor shall not to be unreasonably withheld. If Lessor rejects any plans set forth by Lessee, both parties have thirty (30) days to come up with an alternate design acceptable to both parties. If plans are not agreed upon during that time, Lessee may move forward with a stealth design that they feel has the best chance at getting zoning approval. In no event shall the Lessee use a tree design unless Lessor provides written approval for same. 16 RESOLUTION #2021-005 36. Signing Bonus. If the Option is exercised, Lessee shall make a one-time payment of Ten -Thousand Dollars ($10,000.00) to Lessor prior to any commencement of construction within the Leased Premises. [Execution Page Follows] 17 RESOLUTION #2021-005 IN WITNESS WHEREOF, Lessor and Lessee having read the foregoing and intending to be legally bound hereby, have executed this Agreement as of the day and year this Agreement is fully executed. CITY: ATTEST: THOMAS SCHNEIDER, CMC CITY CLERK APPROVED AS TO FORM AND CORRECTNESS: THOMAS J. ANSBRO CITY ATTORNEY CITY OF DANIA BEACH, FLORIDA, a Florida municipal corporation TAMARA JAMES MAYOR ANA M. GARCIA, ICMA-CM CITY MANAGER 18 RESOLUTION #2021-005 WITNESSES: Signature PRINT Name Signature PRINT Name STATE OF COUNTY OF LESSEE: CROWN CASTLE TOWERS 06-2 LLC, A Delaware limited liability company Signature PRINT Name Title Dated: , 2021 The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑ online notarization, on , 2021, by as of CROWN CASTLE TOWERS 06-2 LLC, a Delaware limited liability company, on behalf of the company. He/She is personally known to me or has produced as identification. 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U.iE..ON Mu•y, r.Na1N, wrthr .T it* tl- pw'M -a 11, 1. %Jostle 9f tM MrM(•r 71,s.a,..r,•, /rrll of tM a.+w1 P.ti, .lb� r.thl 'GLtl for .1D to -. Wr.tW. of 'J. am 91 1ltt^' imiLl d. ft3l*n 14 7t.. Li tr„l 1rl! ".it. k ekrr+.f 1. k_jW . fto 1,11p1. Sir " of lisp% jt o i. W4o ilrp =r tlr,; tSO 21 RESOLUTION #2021-005 EXHIBIT "B" EXHIBIT "C" [Attach boundary survey once obtained]