R94-178RESOLUTION NO. R94-/?,¢
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA,
AUTHORIZING AND DIRECTING THE MAYOR AND
CITY CLERK TO EXECUTE A LEASE AGREEMENT
BETWEEN THE CITY OF BOYNTON BEACH AND
BELLSOUTH MOBILITY, INC., FOR THE PURPOSE
OF CONSTRUCTING, MAINTAINING AND
OPERATING A COMMUNICATIONS FACILITY AND
USES INCIDENTAL THERETO; RESCINDING A
PREVIOUS LEASE AGREEMENT DATED
SEPTEMBER 26, 1991; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City of Boynton Beach, hereinafter referred to as "City" is the
of certain real property known as the City's Little League Field; and
WHEREAS, BellSouth Mobility, Inc., hereinafter referred to as "Tenant" desires
lease a portion of said real property, with a right of way for access thereof, containi
approximately 1,000 square feet, for the purpose of constructing, maintaining a
operating a communications facility, and uses incidental thereto.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF T!
CITY OF BOYNTON BEACH, FLORIDA THAT:
~ The Mayor and City Clerk are hereby authorized and directed
execute a Lease Agreement between the City of Boynton Beach and BellSouth Mobili
Inc., which agreement is attached hereto as Exhibit "A".
~ That the Lease Agreement between the City of Boynton Beach a
Bellsouth Mobility, Inc., dated September 26, 1991, and recorded January 15, 1992,
ORB 7088, at page 1801, is hereby rescinded.
This Resolution shall take effect immediately upon passage.
PASSED AND ADOPTED this /,~ day of October, 1994.
ATTEST:
City, Clerk
CITY OF ~BO/YNTON BEACH, FLORIDA
Mayor
Vic~/layor
Commi;
C~..~
(Corporate Seal)
BellSouth. LeaseAgr
10/17/94
PROPOSED
formula, but if the parties are unable to agree upon a substitute
formula, then the matter shall be determined by arbisra~ion in
accordance with the rules of the American Arbitration Association
then prevail£n~, such ad)ustmen5 shall be accomplished by
mul~iplying the aforementioned basic annual rental fee by a
fracsion, zhe numerator of which shall De the mos~ r~cen~ly
published annual Xndex precedln~ the flrs~ day of ~he lease year
for which adJus~men~ is made, the denominator, of which fraction
shall be the corresponding annual ~ndex for the year pracedln~ the
~ir$~ da~e of the previous lease year. Said ~um is in add!~l~n ~c
the base rental fee and is payable upon the next annual paymen~
after ~ubl~cat~on of ~he subjec~ Consumer Price Index and shall
cover ~he past due amounts and the next annual rental fee
adjustment shall be computed and payable.
d. The computation of the annual rental fee adjustment shall
never result in a reduction fromzhe base rental fee above provided
so ~ha~ the minimum rental fee hereunder shall never be less than
the aforesaid base rental fee.
e. I~ a: the end of ~he fifth (5tk) five (5) year term this
Agreeme~has no,.been te~nated~y either p~rty b~ givmng to the
mon~he prior to the end of such term, this Agreement shall
continue in force upon the same covenants, terms and conditions for
a further term of one (I) year, and for annual terms tkere-after
un~il terminated by either party by giving to the other wriuuen
notice of its intention ~o sc ~erm. inate at least six (6) months
p let to the end of such term. The annual rental fee for this
period shall be equal to the annual rental fee paid for the
previous year of th~ fifth (Sth) five (5) year term and increased
by five (~%) percent.
f. Upon the issuance of a Certificate of Occupancy by CITY
for TESL~{T's Communications Paci!i~y at the Ball Field, as
referenced herein, ~NA~N~r shall ~n i~eu of making uhe payment of
rent for the initial five year ~erm as provided in paragraph
above, T~NANT, ~hall ~a'-t~. ~
- ~3 ~..~ a one time lump sum payment of
SEVENTY-FIVE THOUSAN'~D ~00 DOLLARS ($7~,000.00~__. This
sum payment shall constifu~--~. ~'~he advent- re,utai Day~.ent by T~IANT
for the initial five year lease term calcui~.d-~-= as follows:
I) For lease years i. 2.. 3. ~ & 5 of the' Agreement at
the existing annual rental a~..uount of TWELVE ~u,w-~.~n
NO/100 DOLLARS ($12~0C0.00) for a total of SIXTY THOUS.~D and
N0/1O0 DOLLARS {$60,000.00). plus aDPliCab!e sales ~ax.
2) FfPTEEN THOUSAND and NO/100 DOLLAiS {$15.000.00) to
CITY for C£TY's use to improve the Ball Field.
g. Commenclng with the first five year extension term
year ~) of the Agreement, if 'solextendsd. the annual rental amount
PROPOSED
termlnazlon in which :o exercise thLs opclon and nocIfy T~D/TT in
wr~nq.
6. a) TENANT shall, at its expana~, remove the e×isting
lighting ~truc~ure and replace :~e ~t~uc:~ wl~ a new comparable
structure and remount CITY's existin~ lightin~ e~ipment
subs~antia!ly the same height a~ said liqhting a~ipmen~
presently located TE~T '~ ~
. wzzx allow CITY, without char~e~ to
loca~e on the new lightin~ ~tructure it~ munioapai
e~ipment for bRllpark, recreational purposes, at an elevation and
with such e~ipmen~ and reiaEed cables satisfactory to CITY aid as
approved by T~, with such approval not to be unreasonably
withheld. CI~ ~hail provide TENET unon =v~-. .....
Apreemsnt wmtn an exact descrm~t .... ~ ~. ..... , _ this
~xpn~ re~re~ :or ~ae ~nsta!lation for current an~f6tu~e use
anticipated by CI~, The cost of CiTY's equipment, and after the
initial instal!ation thereof, the maintenance of ~his equipment
shall be CI~'s rez~n~ibility. Baid in~tallaZion and maintenance
are to be performed by CITY, or its c~ntractcrs, in a work.an!ihs
manner and all work is to b~ done ~n a ma~er consistent
TENt's high ~ality ponst~ction standard. With the exception of
general day-to-day maintenance, prior to the commencemen~ of any
installation 'or maintenance work tha~ will impact T~'s cablea
and/or e~ipment, CI~ shall sub.i= detailed plans of the work
be perfo~ed to T~kNT for its approval and TEN~ shall have the
option t~ approve CItY's, contractor prior to any instailm~ion
and/or maintenance that wmll re.ire access to the
b) CITY grant~ TEN~%~ De,mission to atzach necessary
transmission lines, cables, antennas, fixtures, and other
associated e~ipm~nt from the e~uipmenl shei~er uo the l~qa~Inq~ ' ~
structure to ma~e TENanT's antanna~ operational.
c) Construction of the reDiacement liphzin~ ~tructur~ shall
co.enos as soon as possible, wi~h anticipated completion of
new._~ s~cture,, bein~ on or about January 31, i995, or ~s otherwise
m~ua~y a~reed between CiTY and
!~,~. Upon the completion of
~h_ new lightin~ structure ~nd reasonable prior no~ica to ~-~v
TENET shall dismantle it~ existinc telaco~munica~ions ~'-.-~
within sixty [60) daym after the replacement structure
operational and relocate the equipmsnt mheiter and mount ins
antennas onto ~he ~eplacement ~tructure. TENET shall be
responsible for the ~ ~
u.s~ 0f such relocation. CITY does h~reby
that the existin~ w=.~.-'~ =~ tank will not be removed and d~_.=,,,~..~-~=~-,~- ]~...~_.-~o.y~'~
CITY ~5iI such time as TENanT has r~movsd its e~%ipm~nt shelter
a~d antennas as contemplated kers!n and relocated smme t~
replacement structure.
ity.
Said
PROPOSED
11. Should the CITY, at any time during the ~erm o~ th;s
Agreement, decide to sell all or any parc e~ the Property ~the
Property to include only the parcel leased hereunder) to a
purchaser other than TENANT, S~ch sale shall be under and subject
to this Lease a~reement and T~ANT'S rights hereunder, and any sale
by the CITY of the portion Of ~hi~ ~ropercy underlyin~ the right of
way herein granted shall be under and sub,eot to the right o~ the
T~.NANT in and ~o s%~ch right of way. CITY a~rees not ~o sell, lea~e
Or use any other areas of ~he entire parcel upon which Proper%y ~s
situated for placement of other communications facilities if, Ln
TENANT's sole judgment (which shall not be aIbizrary}, such
installation would interfere with the faci!ities in use by TTNANT.
12. CITY covenants tha~ ~ANT, on payi~lg the rent and
performin~ the covenants shall peaceably and quietly have, hold and
en~oy the Leased Property.
13. CITY covenants that CITY is seized of good and sufficienz
title and ~n~eres~ to ~he Property and has full
into and exscute this Agreement. C~- further cove~.antsaUth°ritYtha~° thereenter
are no other liens, judgments or impediments of ~ ~
t,t~= on the
Property.
1~.. It is a~reed and understood that this Agreement contains
all agreements, promises and understandings between the CITY and
TENAN~ and that no verbal or oral agreements, promises or
understandings shall be binding upon either ~he CITY or TENANT in
any dispu~e~ controversy or proceeding at law, and a{~y addition,
variation or modification ~o this Agreement shall De void and
ineffective unless made in writing signed by th~ part~as.
15, This :ease Agreement and th~ Performance thereof shall
~ov~rned, interpreted, construed and regulated by the laws cf the
State of Florida,
party ~o be not_==~d may have designa~e~ :c the s~nd~r
notice): -
CITY:
16. This lease may not be sold, subleased, assigned or
5ransferred at any time except to TE~A/TT,s principal, affiliates or
~ubsidiaries of l~s principal, or to any company upon which TEN.~NT
· s merged or consolidated. As to other parties, this Lease may not
be sold, subleased, assi,~.ed or :ransferred without the written
consen~ of the CITY. such consent not to be unreasonably withhe!~.
17. Ail notices hereunder ~ust be ~n writing and ~kali ba
deemed validly Given if sent by certified mail, r~turn r~c~ip~
requested, addressed as fo!low~ {or any other a~dres~ tha~ the
by !!k~
City of ~o.vmton Beach-
c~o Ci%¥ Manager
100 E. ~oynt~n ~each R~ul~vard
s,~n=o~ ..... Florida ~4~-C310
PROPOSED
2S. In accordance with Florida Law, the followin~ snatemen~
hereby made:
RADON GAS: Radon is a natural occurring radiom.~ive gas
than, when it has accumulaued in a buli~lng in ~u£ficlen=
quantities, may present heal~h ris~s Lo peraons who are
exposed =o It over ~ime. Levels of radc~ that exceed
federal and s~a~eguidellne~ have been found in buildings
in Florida. Additional lnfo_-~r~.ation reg-_ding radon and
radon 5estlng may be obtained from y-ar county public
health unit.
24. This Agreement shall be execs]ted in three (3)
counterparts, each o£ which shall ba .eemed an original, and such
counterparts shall constitute but o~e and the same Agreement.
IN' WITNESS WHEREOF, the parties hereto have ~t their hands
the day and year first written above.
CITY
Signed, sealed and delivered
in the presence of:
C~TY OF BOYNTO~~~ ~.3 ~'%
Print Name , By: ~4AYOR
Print '~ame
Aires=:
APPROVED AS TO FORM:
CITY ATTORNEY
STATE OF FLORIDA
COLg~TY OF PALM BEACH
I HERERY CERTIFY than on this _ day of l~g4,
before me personally a~Deared Mayor of
the City of Boyr.~ton ~each, to m~ well kncwn uo he the individual
AGENDA MEMORANDUM NO. 94-331
OCTOBER 18, 1994
X. Legal ? 99 _ of
C.4 Authorize execution of lease agreement between the City of Boynton Beach
and BellSouth Mobility.
History
BellSouth Mobility has an existing lease, approved by the City Commission on September
26, 1991 for the purpose of leasing space on the City's elevated water storage tank. The
lease is for five years with the tenant (BellSouth) having the option to renew for four (4)
additional five year terms (20 years). The agreement also provides for BellSouth to move
to the new tower.
Discussion
The City Attorney has recommended that instead of an amendment to the existing lease,
that a new lease be drawn, moving the BellSouth antenna to the Little League Field. The
pole height would be 150 feet tall. The tallest lights currently at the Little League Field are
85 feet tall. BellSouth has agreed to pay a lump sum of five years worth of lease payments
($60,000) plus a $15,000 donation for the lights for a total of $75,000. This would enable
the City to replace all of the lights on the field. The City Commission would need to
consider the factors set forth in Appendix A, Section 4 (F)(3). Those factors are as follows:
a. Whether the height exception will have an adverse effect on the existing and proposed
land uses.
b. Whether the height exception is necessary.
c. Whether the height exception will severely reduce light and air in adjacent areas.
d. Whether the height exception will be a deterrent to the improvement or development
of adjacent property in accord with existing regulations.
e. Whether the height exception will adversely affect property values in adjacent areas.
f. Whether the height exception will adversely influence living conditions in the
neighborhood.
g. Whether the height exception will constitute a grant of a special privilege to an
individual owner as contrasted with the public welfare.
h. Whether sufficient evidence has been presented to justify the need for a height
exception.
e a , (A/te /4„(�—
Carrie Parker
City Manager
Attachments
c: Charlie Frederick, Parks & Recreation Director
Utilities
APPENDIX A— ZONING Soc. 4
accessory building shall occupy or be constructed upon any lot or
lots or portions of lots that may be combined to meet the size
required for each district.
B. ACCESSORY BUILDINGS. Accessory buildings in
residential districts shall be constructed to conform with the
minimum building and site regulations that are generally
applicable in the district where the building is to be located,
provided, however.
1. All accessory buildings shall be located only in the
side or rear yard at least twelve (12) feet from the
principal building; and
2. Detached storage structures of any type construction
not exceeding one hundred (100) square feet in floor
area and seven (7) feet in height may be erected to a
point at least three (3) feet from the side property line
. and /rir at least three (3) feet from the rear property
line providing no easement rights are abridged.
C. BUILDING FRONTAGE. Every principal building
shall be located on a lot or a publicly dedicated, accepted
and maintained street or private street which conforms to
accepted street standards of this city.
D. THROUGH LOTS (DOUBLE FRONTAGE). On
through lots, the required front yard shall be provided on
each street.
E. [VISUAL OBSTRUCTIONS.) No fence, sign, planting,
hedge, shrubbery, wall or other visual obstruction shall be
treated or maintained with a height greater than three (3)
feet above the street level, within twenty -five (25) feet of the
intersection of the right -of -way lines of two (2) streets, in
any zone, except that open chain -link type fences may be a
maximum of four (4) feet and kept visually clear.
F. HEIGHT LIMITATIONS AND EXCEPTIONS
1. No portion of any structure intended to be utilized
for residential, commercial, or industrial purposes
within the municipal limits of the City of Boynton
Beach, Florida, shall exceed the height of
Supp. No. 35
1897
Soc. 4 BOYNTON BEACH CODE
forty -five (45) feet above the final grade level of
such structure, except as noted below.
2. Water, cooling and fire towers, radio and television tow-
ers of commercial nature, church spires, domes, cupolas,
flagpoles, electrical and mechanical support systems,
and similar structures, and their necessary mechanical
appurtenances may be erected within a structure or on
top of the structure, above the district height limita-
tions provided herein, after obtaining approval of the
city council based on their consideration of the stand-
ards for evaluating exceptions to district height regula-
tions set forth in paragraph 3 below.
3. In considering an application for exception to the dis-
trict height regulation, the city commission shall make
findings indicating the proposed exception
Stapp. Na 35 1898
APPENDIX A-- ZONING
has been studied and considered in relation to the
following standards, where applicable.
a. Whether the height exception will have an ad-
verse effect on the existing and proposed land uses
b. Whether the height exception is necessary
c. Whether the height exception will severely reduce
light and air in adjacent areas.
d. Whether the height exception will be a deterrent
to the improvement or development of adjacent
property in accord with existing regulations
e. Whether the height exception will adversely af-
fect property values in adjacent areas.
f Whether the height exception will adversely in-
fluence living conditions in the neighborhood.
g. Whether the height exception will constitute a
grant of a special privilege to an individual owner
as contrasted with the public welfare.
h. Whether sufficient evidence has been presented to
justify the need for a height exception.
r The city council may, in connection with process-
ing of application for exception hereunder, refer
same to the planning and zoning board for recom-
mendation
4. In residential zones, freestanding television and citi-
zens' band broadcasting antennae may not exceed twenty -
five (25) feet in height, and no freestanding antenna
may be constructed within the building setback lines.
Roof- mounted or wall- supported antennae may exceed
the maximum district height regulation by ten (10)
feet; but in no instance, may an antennae exceed the
roof line height by more than fifteen (15) feet.
a. With respect to private community antenna sys-
tems as defined in this Code, the aforesaid twenty -
five (25) feet height regulation shall not apply. In
the instance of private community antenna sys-
tems, the receiving antenna may not exceed forty -
five (45) feet in height unless an exception is granted
by the city council, and no part of any receiving
antenna may encroach in any setback.
Supp. No. 25 1899
grc ' • f ,
LEASE AGREEMENT
BETWEEN
THE CITY OF BOYNTON BEACH
AND
BELLSOUTH MOBILITY INC
This LEASE AGREEMENT (hereinafter referred to as "Agreement ")
is made and entered into this / day of / , 199,4'-4 the
CITY OF BOYNTON BEACH, a municipal corporation of the State of
Florida, whose address is 100 East Boynton Beach Boulevard, Boynton
Beach, Florida 33425 -0310, (hereinafter referred to as "CITY ") and
BELLSOUTH MOBILITY INC, whose address is 5201 Congress Avenue
Boca Raton, FL 33487, (hereinafter referred to as "TENANT ").
W I T N E S S E T H:
WHEREAS, CITY is the owner of certain rea property known as
the City's Little League Field, located at .44 ziafrr , -9-D
in the City of Boynton Beach in Palm Beach County, State of
Florida; and
WHEREAS, TENANT desires to lease a portion of said real
property (hereinafter called Property), with a right of way for
access thereto, containing approximately 1,000 square feet more
specifically described in and as substantially shown outlined in
red on Exhibit "A" attached hereto and made a part hereof.
NOW, THEREFORE, in consideration of the sum of Ten Dollars
($10.00), and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. The foregoing recitations are true and correct and are
hereby incorporated herein by reference.
2. CITY hereby leases to TENANT that certain parcel of
Prop rty located within CITY's Little League Ball Field at
�4eia4/T -'V , containing approximately 1,000
square feet, situated in Palm Beach County, State of Florida,
together with the non - exclusive right for ingress and egress, seven
(7) days a week, twenty -four (24) hours a day, on foot or motor
vehicles, including trucks, and for the installation and
maintenance of utility wires, cables, conduits and pipes over,
under or along a twenty foot (20 foot) wide right of way extending
from the nearest public right of way which is
, to the demised premises, (including TENANT's equipment
shelter and lighting structure as referenced herein), said Property
1
ag_ u
0 of
formula, but if the parties are unable to agree upon a substitute
formula, then the matter shall be determined by arbitration in
accordance with the rules of the American Arbitration Association
then prevailing. Such adjustment shall be accomplished by
multiplying the aforementioned basic annual rental fee by a
fraction, the numerator of which shall be the most recently
published annual Index preceding the first day of the lease year
for which adjustment is made, the denominator of which fraction
shall be the corresponding annual Index for the year preceding the
first date of the previous lease year. Said sum is in addition to
the base rental fee and is payable upon the next annual payment
after publication of the subject Consumer Price Index and shall
cover the past due amounts and the next annual rental fee
adjustment shall be computed and payable.
d. The computation of the annual rental fee adjustment shall
never result in a reduction from the base rental fee above provided
so that the minimum rental fee hereunder shall never be less than
the aforesaid base rental fee.
e. If at the end of the fifth (5th) five (5) year term this
Agreement has not been terminated by either party by giving to the
other written notice of an intention to terminate it at least six
(6) months prior to the end of such term, this Agreement shall
continue in force upon the same covenants, terms and conditions for
a further term of one (1) year, and for annual terms there -after
until terminated by either party by giving to the other written
notice of its intention to so terminate at least six (6) months
prior to the end of such term. The annual rental fee for this
period shall be equal to the annual rental fee paid for the
previous year of the fifth (5th) five (5) year term and increased
by five (5%) percent.
f. Upon the issuance of a Certificate of Occupancy by CITY
for TENANT's Communications Facility at the Ball Field, as
referenced herein, TENANT shall in lieu of making the payment of
rent for the initial five year term as provided in paragraph 4.c.
above, TENANT, shall pay to CITY a one time lump sum payment of
SEVENTY -FIVE THOUSAND and NO /100 DOLLARS ($75,000.00). This lump
sum payment shall constitute the advance rental payment by TENANT
for the initial five year lease term calculated as follows:
1) For lease years 1, 2, 3, 4 & 5 of the Agreement at
the existing annual rental amount of TWELVE THOUSAND and
NO /100 DOLLARS ($12,000.00) for a total of SIXTY THOUSAND and
NO /100 DOLLARS ($60,000.00), plus applicable sales tax.
2) FIFTEEN THOUSAND and NO /100 DOLLARS ($15,000.00) to
CITY for CITY's use to improve the Ball Field.
g. Commencing with the first five year extension term (lease
year 6) of the Agreement, if so extended, the annual rental amount
3
shall be adjusted pursuant to the terms of paragraph 4.c. of this
Agreement.
5. TENANT shall use the Property for the purpose of
constructing, maintaining and operating a Communications Facility
and uses incidental thereto, consisting of a) a new unmanned
equipment building constructed by TENANT to shelter its
telecommunications equipment and related office space. The new
building will be attached to CITY's existing store room /equipment
building and the new construction shall substantially match the
building trim and the building type and exterior finish of the
existing building; b) a one hundred fifty foot (150') free standing
lighting structure designed to meet TENANT's telecommunications
needs, and; c) all necessary connecting appurtenances. A security
fence consisting of chain link construction or similar but
comparable construction, at the option of TENANT, shall be placed
around the perimeter of the Property (not including the access
easement). All improvements shall be at TENANT's expense. TENANT
will maintain the Property in a reasonable condition. It is
understood and agreed that TENANT's ability to use the Property is
contingent upon its obtaining after the execution date of this
Agreement, all of the certificates, permits and other approvals
that may be required by any federal, state or local authorities.
CITY shall cooperate with TENANT in its effort to obtain such
approvals and shall take no action which would adversely affect the
status of the Property with respect to the proposed use thereof by
TENANT. CITY agrees to sign such papers as required to file
applications with the appropriate zoning authority and /or
commission for the proper zoning of the Property as required for
the use intended by the TENANT. TENANT will perform all other acts
and bear expenses associated with the rezoning procedure. CITY
agrees to make its best efforts to support the rezoning and
administrative procedures. In the event that any of such
applications should be finally rejected or any certificate, permit,
lease or approval issued to TENANT is cancelled, expires, lapses,
or is otherwise withdrawn or terminated by governmental authority
or soil boring tests or radio frequency propagation tests are found
to be unsatisfactory so that TENANT in its sole discretion will be
unable to use the Property for its intended purposes, TENANT shall
have the right to terminate this Agreement. Notice of the TENANT's
exercise of its right to terminate shall be given to CITY in
writing by certified mail, return receipt requested, and shall be
effective upon receipt of such notice by the CITY as evidenced by
the return receipt. All rental fees paid prior to said termination
date shall be retained by the CITY. Upon such termination, this
Agreement shall become null and void and all the parties shall have
no further obligations, including the payment of money, to each
other. TENANT shall offer CITY the first option to purchase said
lighting structure, the equipment building and certain remaining
improvements at such time as TENANT may elect to terminate this
Agreement for the agreed upon sum of One Hundred Dollars ($100.00) .
CITY shall have sixty days from receipt of such notice of
4
termination in which to exercise this option and notify TENANT in
writing.
6. a) TENANT shall, at its expense, remove the existing
lighting structure and replace the structure with a new comparable
structure and remount CITY's existing lighting equipment at
substantially the same height as said lighting equipment is
presently located. TENANT will allow CITY, without charge, to re-
locate on the new lighting structure its municipal lighting
equipment for ballpark, recreational purposes, at an elevation and
with such equipment and related cables satisfactory to CITY and as
approved by TENANT, with such approval not to be unreasonably
withheld. CITY shall provide TENANT upon execution of this
Agreement with an exact description of all lighting equipment and
height required for the installation for current and future use
anticipated by CITY. The cost of CITY's equipment, and after the
initial installation thereof, the maintenance of this equipment
shall be CITY's responsibility. Said installation and maintenance
are to be performed by CITY, or its contractors, in a workmanlike
manner and all work is to be done in a manner consistent with
TENANT's high quality construction standard. With the exception of
general day -to -day maintenance, prior to the commencement of any
installation or maintenance work that will impact TENANT's cables
and /or equipment, CITY shall submit detailed plans of the work to
be performed to TENANT for its approval and TENANT shall have the
option to approve CITY's contractor prior to any installation
and /or maintenance that will require access to the structure.
b) CITY grants TENANT permission to attach necessary
transmission lines, cables, antennas, fixtures, and other
associated equipment from the equipment shelter to the lighting
structure to make TENANT's antennas operational.
c) Construction of the replacement lighting structure shall
commence as soon as possible, with anticipated completion of the
new structure being on or about January 31, 1995, or as otherwise
mutually agreed between CITY and TENANT. Upon the completion of
the new lighting structure and reasonable prior notice to CITY,
TENANT shall dismantle its existing telecommunications facility
within sixty (60) days after the replacement structure is
operational and relocate the equipment shelter and mount its
antennas onto the replacement structure. TENANT shall be
responsible for the cost of such relocation. CITY does hereby agree
that the existing water tank will not be removed and dismantled by
CITY until such time as TENANT has removed its equipment shelter
and antennas as contemplated herein and relocated same to the
replacement structure.
d) The cost of TENANT's telecommunications equipment, its
installation and maintenance thereof shall be TENANT's responsibil-
ity. Said installation and maintenance are to be performed by
TENANT, or its contractors, in a workmanlike manner and all work is
5
to be done in a manner consistent with TENANT's high quality
construction standard. Prior to the commencement of any
installation work TENANT shall submit detailed plans of the work to
be performed to CITY for its approval.
e) TENANT shall furnish to the unmanned equipment shelter
electric service for the operation of TENANT's telecommunications
equipment. Said electric service shall be furnished underground to
TENANT's equipment shelter and TENANT shall be solely liable for
electricity expenses relating to its installation. TENANT's
electrical service shall be separately metered and TENANT shall be
responsible for all costs associated with metering, including the
cost of installing any meter. If TENANT should install any
emergency generators at this site, said generator shall be propane
fueled and all equipment shall comply with Palm Beach County's
Wellfield Protection Ordinance.
7. TENANT shall indemnify and hold CITY, its agents,
servants or employees, harmless against any claim of liability or
loss from personal injury or property damage resulting from or
arising out of the use and occupancy of the Property by the TENANT,
its agents, servants or employees, excepting, however, such claims
or damages as may be due to or caused by the acts of the CITY, or
its agents, servants or employees.
8. CITY agrees that TENANT may self - insure against any loss
or damage which could be covered by a comprehensive general public
liability insurance policy.
9. TENANT will be responsible for making any necessary
returns for and paying any and all property taxes separately levied
or assessed against its improvements on the Property. TENANT shall
reimburse CITY as additional rent its proportionate share of any
increase in real estate taxes levied against the leased Property in
excess of the taxes due for the 1991 real estate taxes on the real
property in which the leased premises are a part and payable and
are not separately levied or assessed against TENANT's improvements
by the taxing authorities.
10. Except as provided in paragraph 5 herein, TENANT upon
termination of this Agreement shall within a reasonable period,
remove its personal property and fixtures and restore the Property
to its original condition, reasonable wear and tear excepted. At
CITY's option when this Agreement is terminated and upon CITY's
advance written notice to TENANT, TENANT will leave the foundation
and security fence to become property of CITY. If such time for
removal causes TENANT to remain on the property 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 of
personal property and fixtures are completed.
6
11. Should the CITY, at any time during the term of this
Agreement, decide to sell all or any part of the Property (the
Property to include only the parcel leased hereunder) to a
purchaser other than TENANT, such sale shall be under and subject
to this Lease Agreement and TENANT's rights hereunder, and any sale
by the CITY of the portion of this Property underlying the right of
way herein granted shall be under and subject to the right of the
TENANT in and to such right of way. CITY agrees not to sell, lease
or use any other areas of the entire parcel upon which Property is
situated for placement of other communications facilities if, in
TENANT's sole judgment (which shall not be arbitrary), such
installation would interfere with the facilities in use by TENANT.
12. CITY covenants that TENANT, on paying the rent and
performing the covenants shall peaceably and quietly have, hold and
enjoy the Leased Property.
13. CITY covenants that CITY is seized of good and sufficient
title and interest to the Property and has full authority to enter
into and execute this Agreement. CITY further covenants that there
are no other liens, judgments or impediments of title on the
Property.
14. It is agreed and understood that this Agreement contains
all agreements, promises and understandings between the CITY and
TENANT and that no verbal or oral agreements, promises or
understandings shall be binding upon either the CITY or TENANT in
any dispute, controversy or proceeding at law, and any addition,
variation or modification to this Agreement shall be void and
ineffective unless made in writing signed by the parties.
15. This Lease Agreement and the performance thereof shall be
governed, interpreted, construed and regulated by the laws of the
State of Florida.
16. This lease may not be sold, subleased, assigned or
transferred at any time except to TENANT's principal, affiliates or
subsidiaries of its principal, or to any company upon which TENANT
is merged or consolidated. As to other parties, this Lease may not
be sold, subleased, assigned or transferred without the written
consent of the CITY, such consent not to be unreasonably withheld.
17. All notices hereunder must be in writing and shall be
deemed validly given if sent by certified mail, return receipt
requested, addressed as follows (or any other address that the
party to be notified may have designated to the sender by like
notice) :
CITY: City of Boynton Beach
c/o City Manager
100 E. Boynton Beach Boulevard
P.O Box 310
Boynton Beach, Florida 33425 -0310
7
TENANT: BellSouth Mobility Inc
5201 Congress Avenue
Boca Raton, FL 33487
ATTN: Manager Real Estate
18. This Agreement shall extend to and bind the heirs,
personal representatives, successors and assigns of the parties
hereto.
19. If the whole of the leased premises or such portion
thereof as will make the premises unusable for the purposes herein
leased, are condemned by any legally constituted authority for any
public use or purpose, then in either of said events the term
hereby granted shall cease from the time when possession thereof is
taken by public authorities, and rental shall be accounted for as
between CITY and TENANT as of that date. Any lesser condemnation
shall in no way affect the respective rights and obligations of
CITY and TENANT hereunder. Nothing in this provision shall be
construed to limit or affect TENANT's right to an award of
compensation of any eminent domain proceeding for the taking of
TENANT's leasehold interest hereunder.
20. CITY and TENANT agree that a copy of this Agreement shall
be recorded among the Public Records of Palm Beach County, Florida,
upon execution of this Agreement. CITY and TENANT agree to take
such actions as may be necessary to permit such recording or
filing. TENANT, at TENANT's option and expense, may obtain title
insurance on the space leased herein. CITY shall cooperate with
TENANT's efforts to obtain such title insurance policy by executing
documents or, at CITY's expense, obtaining requested documentation
as required by the title insurance company. If title is found to
be defective, CITY shall use diligent effort to cure the defects in
title.
21. CITY shall hold TENANT harmless from and indemnify TENANT
against and from any damage, loss, expenses or liability resulting
from the discovery by any person of hazardous substance generated,
stored, disposed of, or transported to or over the Property, as
long as such substance was not stored, disposed of, or transported
to or over the Property by TENANT, its agents, contractors,
employees, or invitees. TENANT will be responsible for any and all
damages, losses, and expenses and will indemnify CITY against and
from any discovery by any persons of such hazardous wastes
generated, stored, or disposed of as a result of TENANT's equipment
and use of the subject Property.
22. In connection with any litigation arising out of this
Agreement, the prevailing party, whether CITY or TENANT, shall be
entitled to recover all costs incurred including attorney's fees
for services rendered in connection with any enforcement or breach
of contract, including appellate proceedings and post judgment
proceedings.
8
23. In accordance with Florida Law, the following statement
is hereby made:
RADON GAS: Radon is a natural occurring radioactive gas
that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings
in Florida. Additional information regarding radon and
radon testing may be obtained from your county public
health unit.
24. This Agreement shall be executed in three (3)
counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands
the day and year first written above.
CITY
Signed, sealed and delivered
in the presence of: CITY OF BOYNTON BEACH
Pri ft Name !! MAYOR
r ✓
Attest: 0i.�_� u acs
Prin Na - ;/ .eZ
APP VED AS TO FO M:
r
Cr TTORN
STATE OF FLORIDA •
COUNTY OF PALM BEACH •
I HEREBY CERTIFY that on this / day of , 199,
before me personally appeared Mayor E dtt)AAb F tIflomcn, n of
the City of Boynton Beach, to me well known to be the i dividual
9
who executed the foregoing instrument and acknowledged before me
that he executed the same for the purposes therein expressed.
WITNESS my hand and official seal this / day of
V .r � , 199g.
•TA.•Y PUBLIC
P' ' nt Name JA Ne_T ,12A�n� T�
My Commission Expires:
.� :sv JANET M. PRAINITO
MY COMMISSION S CC 386147
10a EXPIRES: August 27,1998
'- °f, `4'' Bonded ThnI Notary Public Undervatters
TENANT
Signed, sealed and delivered
in the presence of:
BELLSOUTH MOBILITY INC
l i,hLe4a /4/ iG2�
Print Name / By: 4 OA/
� Attest:
Print Naviie F, g6) Z 116d
STATE OF FLORIDA
COUNTY OF PALM BEACH
s I HEREBY CERTIFY that on this _Jr day of ,
1994, before me personally appeared S
of BELLSOUTH MOBILITY INC, to me well known to be the individual
who executed the foregoing instrument and acknowledged before me
that he executed the same for the purposes therein expressed.
// !x
W NESS my hand and official seal this /6 day of
, 1994.
.r /1/14∎.
NOT PUBLIC
Print Name �/ / / 2 t he/ue1 x/v
My Commission Expires:
:4; tq r .H;r ':,«te of 71c rida at t3,'€;e
5563REV-.AGR on Expires Dec. 17, 199s
10-13-94 ;ncied tur,t HucksI be rrY & Associa
(MIAMI ABBB)
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MIAMI, FLORIDA CELLULAR SYSTEM LEASE AGREEMENT t 11-
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325 MAIN ILYD 6 IN CR11,731 . 10. ARKET . 74611
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BOYNTON BEACH Ft. 33435FT OIT LT 7 E. S 296.05 FT OF SSESS 116294
P/C 097 11 474.01I FT OF 18 142.71 FT
ACRES 1.97 1- OF £ 167.77,FT OF LT 1' • . .i* 0
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