R99-107RESOLUTION NO. R99-/~Z'
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY Of BOYNTON BEACH, FLORIDA, AUTHORIZING
AND DIRECTING THE MAYOR AND CITY CLERK TO
EXECUTE A GROUND LEASE AGREEMENT BETVVEEN
THE CITY OF BOYNTON BEACH AND UNISITE, INC.
AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, upon recommendation of staff, the City Commission has determined
~,hat it is in the best interests of the residents or the City to execute a Ground Lease
~,greement between the City of Boynton Beach and Unisite, Inc.; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The City Commission of the City of Boynton Beach, Florida does
3ereby authorize and direct the Mayor and City Clerk to execute a Ground Lease
~,greement between the City of Boynton Beach and Unisite, Inc., a copy of which
~,greement is attached hereto as Exhibit "A".
PASSED AND ADOPTED this ,/~' day of August, 1999.
V i c"e Mayor "
Comm~ss~ner. ,--2
Commissioner
~TTEST:
GROUND LEASE AGREEMENT
This Ground Lease Agreement ("Ground Lease") is by and between UNISITE, I2NC.,
a Delaware corporation, having a principal place of business at 3450 Buschwood Park Drive,
Suite 250, Tampa, Florida 33618 ("Lessee") andcj.~y_oJ~Bx~~mrzh~ a
F_L__Municipal Corp. , having a principal place of business at
100 E. Boynton Beach Blvd. ("Lessor").
WItEREAS, Lessor is the owner of property having a street address of
not applicable-see legal description located in the
City of Boynton Beach , County of
P~lrn Roloh · Plc~-r'~da. ___, and hereafter referred to as the
"Property". The Property is more fully described on Exhibit "A" attached hereto and made a
part of this Ground Lease.
NOW, IlctEREFORE, in consideration of the mutual covenants contained here{n and
for good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Lease.
Twenty- five Hundred
Lessor agrees to lease to Lessee approximately 05 0 0 ) square feet of
space, more fully desen~oed in Exhibit "B" (the "Premises"). Lessor shall maintain the
Property so as not to interfere with Lessee's use of the Premases and rights under this Ground
Lease.
2. Use of Premises.
Lessee agrees to use the Premises for the installation, construction, operation and maintenance
of a wireless co~,~mn/cations transmission and reception facility, including, without
limitation, communications equipment pole or tower smactures, shelter buildings, telephone,
electric and radio cables and other transmission lines, fencing, and other related equipment and
facilities (collectively, a "Site Compound") for the use and occupancy by providers of wireless
communications services ("Users"). Upon the expiration or termination of this Ground Lease,
Lessee agrees to repair any damage to the Premises caused by Lessee, and restore the Premises
to its condition on the Commencement Date (as defined below), ordinary wear and tear,
damage from the elements excepted.
In connection with the Site Compound, Lessee shall have the right, at its sole cost and
expense, to obtain electrical and telephone service directly from the servicing utility company,
including the right to install ~ separate transformer, meter and main breaker, where required.
Lessee or the Site Compound Users shall be responsible for the utilities consumed at its Site
Compound at the normal rate charged by the servicing utility company. Lessee and Lessor
agree that if an easement is required to obtain and maintain utility services, an easement will
be granted by Lessor at an acceptable location agreed to by Lessor and the servicing utility
company.
Lessee shall have the right to use whatever measures it deems reasonably appropriate to ~nstaH
and secure the Site Compound on the Premises, provided that it is in compliance with all
applicable laws and regulations. Lessor agrees to cooperate with Lessee in making application
for and obtaining, at Lessee's expense, any local, state, federal licenses, permits and any other
05/18/99
approvals (the "Approvals") which may be required to allow Lessee use of the Premises.
Lessee shall employ due diligence to obtain Approvals in a timely manner. If, however,
Lessee is denied or is unable to obtain a required Approval, including a written commitment
from a User for the Site Compound prior to Lessee obtaining a building permit and
commencing construction, Lessee shall have the exclusive right to terminate this Ground
Lease within its sole discretion, and no further liabilities under this Ground Lease shall remain
in force or effect, including but not limited to the payment of Rent (as defined below).
Lessor agrees to provide twenty-four (24) hours, seven (7) days a week access to the Premises
without charge to Lessee. or Lessee's employees, Users, conzraetors, subcontractors or agents,
which access shall remain unimpeded throughout the Term and any Renewal Term of this
Ground Lease.
3. Site Testing.
Lessor acknowledges that Lessee, at its option following full execution of this Ground Lease,
may perform engineering surveys, structural analysis reports, Phase I environmental
assessments, or any other testing or reports which may be required in order for Lessee to
occupy the Premises as described in this Agreement. Lessor agrees to provide to Lessee, upon
request, such information as Lessor has in its possession or control regarding the Premises.
including title materials, leases, survey plans, environmental assessments, or other reports and
copies of pernnts and approvals. Any materially adverse test results or report will entitle
Lessee, at its option, to terminate this Ground Lease.
4. Interference.
Lessor reserves the right to at any time during the lease, install or have installed other antennas
for government usage on Lessee's tower. All antennas shall be placed at an elevation as m
provide the most effective use and with such approval not unreasonably withheld; provided
however, that any such placement must be pre-approved by Lessee, and any of the Lessor's
antennas or transmissions shall not interfere with the Lessee's operators or operations on the
tower or property. Should such interference occur, Lessor shall promptly take all necessary
action, at no cost to Lessee, to eliminate the cause of said interference. Further, should Lessee
install an emergency generator on the Property, the Lessor may access and connect only its
communications eqmpment on Lessee's emergency generator, upon prior approval of Lessee.
5. Term.
The initial term of this Ground Lease shall be for a period of five (5) years ("Term")
commencmg upon the date Lessee is in receipt of a building permit to begin construction of
the Site (the "Commencement Date"), and shall terminate on the fifth anniversary of the
Commencement Date, unless sooner terminated in accordance with this Ground Lease. Lessee
shall have the right to renew the Ground Lease for four (4) successive five (5) year periods
(each a "Renewal Term"), upon the same terms and conditions in effect during the Term. This
Ground Lease shall automatically renew for each successive Renewal Term unless Lessee
provides written notice to Lessor of its intention not to renew at least thirty (30) days prior to
the expiration of the Term or any Renewal Term.
6. Rent.
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Lessee agrees to pay to Lessor as annual rent the sum of Eighteen Thousand Dollars ($
18,000) ("Rent") payable annually, during the Term and any Renewal Term, The first payment
of Rent shall be made within ten business days following the Commencement Date. Rent
payments shall be payable to Lessor at the address set forth above or at such other address as
Lessor shall notify Lessee ~n accordance with Paragraph 14. In addition, the Rent shall
increase annually by three percent (3%) escalations, compounded annually.
7. Taxes.
Lessee shall pay any personal property taxes, use and occupancy taxes, and increases in real
estate taxes, (excepl roll-back or similar taxes, including interest and penalties) directly
attributable to Lessee's use and occupancy of the Premises and the Site Compound. Lessor
shall provide evidence of such assessment within a timely manner.
8. Insurance; Waiver of Subrogation.
Lessee, at its sole cost and expense shall provide and maintain, during the Term of this Ground
Lease and any Renewal Terms, commercial general liability insurance with combined single
limit coverage of One Million Dollars ($1,000,000). Lessee shall name Lessor as an
additional insured on Lessee's insurance policy and provide Lessor with an insurance
certificate prior to the Commencement Date. In addition, Lessee shall maintain worker's
compensation insurance as required by applicable state law. Upon execution of this
Agreement, the City of Boynton Beach shall be named as an additional insured as its interest
may appear with respect to the required coverage's and the operations of Lessee under this
Agreement.
9. Indemnification.
Lessor and Lessee each agree to indemnify and hold harmless the other party from and against
any and all claims, damages, costs and expenses, including reasonable attorney fees, to the
extent caused by or arising out of (a) the negligent acts or omissions or willful misconduct in
the operations or activities on the Property by the indemnifying party or the employees,
agents, contractors, hcensees, tenants and/or subtenants of the indemnifying party, CO) a breach
of any obligation of the indemnifying party under this Ground Lease, or (c) environmental
conditions, unless caused by the indemnified party or its employees, agents, tenants (other
than the indemnifying party), contractors, subcontractors or representatives, and, with respect
to Lessor's indemnification, any such conditions which are pre-existing Lessee's fight to use
and occupy a Site. Notwithstanding the foregoing, this indemnification shall not extend to
indirect, special, incidental or consequential damages, including, without limitation, loss of
profits, income or business bpportunities to the indemnified party or anyone claiming through
the indenmified party. NOTHING CONTAINED HEREIN IS INTENDED NOR SHALL BE
CONSTRUED TO WAIVE THE LOSSEOR'S RIGHTS FROM IMMUNITIES UNDER
THE COMMON LAW OF FLORIDA STATUTES 768.28 AS AMENDED FROM TIME TO
TIME.
10. Right to Lease and Warranty of Title.
Lessor represents and warrants that: (a) Lessor has the sufficient fight, title and interest in the
Property to enter into this Ground Lease and to grant Lessee its fights hereunder; Co) Lessor
has not entered into any agreement with any third party which would require such party's
05/18/99
consent hereto or preclude or limit Lessor's performance of its obligations under this Ground
Lease; (c) Lessor owns the Property in fee simple and has the right to grant access to and use
of the Premises; and (d) so long as Lessee complies with the terms and conditions of this
Ground Lease, Lessor shall provide to Lessee quiet and peaceful enjoyment and exclusive
possession of the Premises.
11. Assignment.
This Ground Lease may not be sold. assigned, or transferred at any time except to Lessee's
principal affiliates, subsidiaries, or ns principal, or to any company upon which Lessee is
merged or consolidated. As to other parties, this Ground Lease may not be sold, assigned,
or transferred without the written consent of the Lessor, such consem shall not be
unreasonably withheld. This promsion will not preclude Lessee from allowing other
parties to co-locate on the Property or tower.
12. Default.
No event of default (a "Default") shall be deemed to have occurred hereunder unless either
party, after notice from the other party in accordance with Paragraph 14, (a) fails to pay any
monetary obligation when due and does not cure such failure within ten (10) days after such
notice or (b) commits a material breach of its non-monetary obligations under this Ground
Lease and fails within thirty (30) days after such notice thereof to cure or commence curing
the breach and continuously and dihgently pursue such cure to its completion in not more than
sixty (60) days after such notice. Upon the occurrence of a Default as set forth in the
preceding sentence, the non-defaulting party shall have the right to terrmnate this Ground
Lease after ten (10) days notice to the other party in accordance with Paragraph 14, provided
the Default is not cured within said ten-day period.
13. Collateral Assignment.
Lessor hereby (a) consents to the collateral assignment and granting of a security interest from
time to time in favor of a third party (a "Secured Party"), whether now or hereafter existing, in
and to the Site Compound and Lessee's right, title and interest in, to and under this Ground
Lease; (b) agrees to simultaneously provide the Secured Party with a copy of any notice of
default under the Ground Lease sent to Lessee and allow the Secured Party the opportunity to
remedy or cure any default as provided for in the Ground Lease; and (c) agrees to recogmze
the Secured Party as Lessee under this Ground Lease upon the written election of the Secured
Party so long as any existing default under the Ground Lease has been cured as provided
hereunder. Lessor hereby further agrees to permit the Secured Party to remove from the
Property or inspect any of the collateral in which the Secured Party has been granted a security
interest by Lessee in accordance with any security documents granted in favor of the Secured
Party, provided, however, such removal is in accordance with subparagraph 2(a) of this
Ground Lease.
14. Notices.
Unless otherwise provided herein, any notice or demand required to be given herein shall be
given by certified or registered mail, return receipt requested or reliable overnight courier to
the address of Lessee and Lessor as set forth above. Lessee and Lessor may designate a change
of notice address by giving written notice to the other party.
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15. Destruction or Condemnation.
If the Premises are damaged or destroyed by casualty or condemned such that Lessee is unable
to operate its Site Compound as contemplated in this Agreement, then witb/n sixty (60) days
after such occurrence, Lessee may elect to terminate this Ground Lease as of the date of the
damage, destruction or condemnation. If Lessee chooses not to terminate this Ground Lease,
the Rent shall be reduced or abated in proportion to the actual reduction or abatement of use of
the Premises so long as such reduced or abated use exists.
16. Amendment.
No amendment or modification to any provi:
made in writing and agreed to and signed by tl
17. Memorandum of Ground Lease.
Lessor acknowledges and gives Lessee the rig
form attached hereto as Exhibit "C" in the cou
the Property. be encumbered by any mortgage
effort to obtain from mortgagees or trustees
ion of this Ground Lease shall be valid unless
Le party to be bound.
it to file a Memorandum of Ground Lease in the
aty office where the Property is located. Should
or deed of trust, Lessor shall make a good faith
,'xisting on the Effective Date, and shall obtain
from subsequent mortgagees or trustees, a ngn-disturbance and attornment Ground Lease in
favor of Less..ee.
18. Recogmtion, Consent and Nondisturbance
Any agreements between Lessee and Users for use and occupancy of the Site Compound shall
be subject end subordinate to this Ground Lease. Without limiting the foregoing, Lessor shall
not, by reason of default by Lessee under this Ground Lease, or by exercise of eny remedy
against Lessee by Lessor or a User, disturb the use, occupancy or quiet enjoyment of the
Premises by eny such Users during the Term of, and as provided in, this Ground Lease;
provided, however, that Lessor shall not be lia¢le for eny act or omission of Lessee.
/
If there is an early termination of this Ground Lease for any reason, then Lessor agrees not to
disturb the fights of any User on the Premises under an agreement with Lessee, provided that:
(i) the User is not then in default (beyond arly applicable no,ce and cure periods) under its
agreement with Lessee, and continues to perform all of User s obligations thereunder; (ii) at
Lessor's election, User either agrees to attom ~o Lessor or enters into a direct lease with Lessor
on the same terms as those in effect in the agreement between User end Lessee; and (iii) User
executes a document evideneing the foregoing, provided or approved, and executed, by
Lessor, within thirty (30) days after Lessor presents such document for execution (or such
longer period as the parties may agree to in whting). Lessor shall not be table or responsible
for any default by Lessee occurring prior to the date of such attornment or direct lease.
19. Miscellaneous Lease Provisions
a) This Ground Lease shall be governed by the laws of the state in which the Property is
located.
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b)
This Ground Lease, constituting the entire agreement and understanding between the
parties, shall be binding on and inure to the benefit of the successors, transferees in
title, and permitted assignees of the respective parties.
c) Consent or approval of Lessor, where required, shall not be unreasonably withheld,
delayed or denied.
d)
If any provision of this Ground Lease is deemed invalid or nonenforceable, the
remainder of this Ground Lease shall remain in force and to the fullest extent as
permitted by law.
e) The "Effective Date" of this Ground Lease shall be the date on which this Ground
Lease has been fully executed by and becomes binding on all oftbe parties hereto·
Neither party, without the written consent of the other, shall disclose to any th/rd party
any of the terms or conditions of this Ground Lease, or any information provided
during negotiation of this Ground Lease, other than as disclosed by recording of the
Memorandum of Lease Ground Lease or as required by final order of a court of
competent jurisdiction.
g)
Notwithstanding any other provisions of this Ground Lease, Lessee may terminate this
Ground Lease at any time, upon giving notice to the Lessor, if Lessee in its sole
discretion determines that it will be unable to use the Premises for its intended
purpose·
h) Exhibits "A", "B" and "C" attached hereto, as well as addenda and riders identified
below, are made a material part of this Ground Lease.
Addenda:
Riders:
IN WITNESS WHEREOF, the parties have executed this Ground Lease as of the
Effective Date.
LESSOR: LESSEE:
By: .~ ~...,~fQt/_ ~c } ~ ~ By:
N~ef Gerald Broenin~ Name:
Title: ~ayor Tire:
Date: ~ ~/~ Date:
UNISITE, INC. a Delaware corporation
Tax ~) No.:
Tax ID No.:
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EX H I BIT "A"
DESCRIPTION OF PROPERTY
Form/ng a part of the Ground Lease by and between City of
Lessor, and UNISITE, INC., as Lessee.
The Property is described and/or depicted as follows:
Address: Not Applicable
Section , Block , Lot
[Metes and bounds legal description]
Boynton Beach as
LEGAL DESCRIPTION OF PARENT PARCEL
-Lot 92, Quantum Park at Boynton Beach, P.I.D., Plat No. 3
as recorded in Plat Book 60, Pages 29-31 of the Public
Records of Palm Beach County, Florida, containing t5.79ac.
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E~ H I HIT
DESCRI]PTION OF PREMISES
Forming a par~ of the Ground Lease by and bcr~vecn C±t:_v of Bo_rna:on Beachas
Lessor, and UNISITE, INC., as Lessee.
Thc Premises is described and/or depicted as follows:
Legal Description:
A PARCEL OF LAND BEING A .PORTION OF LOT 92, QUANTUM PARK AT
BOYNTON BEACH, P.LD. PLAT NO. 3 AS RECORDED IN ~i~i~)OK 60, PAGES
29 31 OF THE PUBLIC RECORDS OF PALM BEACH C~ -U~,:~ F~ORIDA, BEING
- .,.~ .%~ .~ ..~,t
MORE PARTICULARLY DESCRIBED AS FOLLOWS: ~. '~ ~ ; ~ ~ ~ ~
COMMENCE AT THE EASTERLY MOST NORTHEAST CORNER 'OF'SAiD LOT 92;
THENCE ON A GRID BEARING OF N71°39'01' W ALONG THE NORTH LINE OF
SAID LOT 92, (SAID LINE ALSO BEING THE SOUTH LINE OF A PARCEL OF LAND
RECORDED IN OFFICIAL RECORD BOOK 5449, PAGE 321 AS SHOWN ON SAID
PLAT} A DISTANCE OF 5.0:1 FEET;
THENCE S18~20'59"VV A DISTANCE OF 5.00 FEET TO A POINT ON A LINE 5.00
FEET SOUTH OF AND PARALLEL WITH THE NORTH LINE OF SAID LOT 92;
THENCE N71o39'01~/V ALONG SAID PARALLEL LINE A DISTANCE OF 50.00 FEET;
THENCE S19°39'28"VV A DISTANCE OF 50.01 FEET;
THENCE S71°39'01"E A DISTANCE OF 50.00 FEET TO A POINT ON A LINE 5.00
FEET WEST OF AND PARALLEL WITH THE EAST UNE OF SAID LOT 92, SAID
POINT BEING ON THE ARC OF A NON-TANGENT CURVE CONCAVE TO WEST, A
RADIAL LINE OF SAID CURVE THROUGH SAID POINT HAVING A BEARING OF
S69°15'10'E; THENCE NORTHERLY ALONG SAID PARALLEL LINE, ALONG THE
ARC OF SAID CURVE TO THE LEFT, RAVING A CENTRAL ANGLE OF 02~10'45'
AND A RADIUS OF 1315.00 FEET FOR AN ARC DISTANCE OF 50.02 FEET TO
THE POINT OF BEGINNING;
SAID LAND SITUATE WITHIN THE CITY OF BOYNTON BEACH, PALM BEACH
COUNTY, FLORID~ CONTAINING 2,500 SQUARE FEET, MORE OR LESS.
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EXI-IIBIT "C"
MEMORANDUM OF GROUND LEASE
This Memorandum of Ground Lease is entered into by and between
City of Boynton Beach , aFL Municipal Corp. , with an office
at 100 E. BoTnton Beach Blvd. , ("Lessor") and UNISi'rE,
~NC., a Delaware corporation, with an office at 3450 Buschwood Park Drive, Suite 250,
Tampa, Florida 33618 ("Lessee").
1 Lessor and Lessee entered into a Ground Lease Agreement ("Agreement") for
the purpose of constructing, installing, operating and maintaining a wireless communications
facility and related improvements. All of the foregoing are set forth in the Ground Lease.
2. The term of the Ground Lease commences onsee paragraph 5 and
ends OhS ee parag. 5, with 4 successive five (5) year options to renew.
3. The Property which is the subject of the Ground Lease is described in
Exhibit "A" annexed hereto. The portion of the Property being leased to Lessee ("Premises")
is described in Exhibit "B" annexed hereto.
[N V~ITf~IESS VqlIE, REOF, the pardes have executed this Memorandum of Ground
Lease as of the dates written below.
LESSOR: LESSEE:
Name: GJrald Broanin~
Title: l~Iavor
Date:
By:
Name:
Title:
Date:
uI~rISITE, INC, a Delaware corporation
STATE OF -~ . _ )
' )
_ COUNTY )
On this c' clay of ., ,1999, before me appeared
to me personally known (or'~ro~'~d to me on the basis of satisfactory evidence), who,
being by me duly sworn, did say that he is the person whose name is subscribed to the
wittfin instrument and acknowledged to me that he executed the same in his authorized
capacity and that by his signature on the instrument, the person, or the entity upon
behalf of which the person acted, executed the instrument.
05/18/99
My Commission Expires:
[NOTARIAL SEAL]
STATE OF FLORIDA
-)
HILLSBOROUGH COUNTY )
AD ,On ~t~s (~f/~day of.,~2~
(.~;~'z~,.t~. /.~ to ~e per~ly ~o~, ~ho, say ~m he is ~e
Delaware eo~oration, that ~e foregoing insment w~ si~ed on beh~f of s~d
~;~ ~u~odty of its Bo~d of D~ecto~; ~d s~d
/ ,- //m ~ ac~owledges s~d instant to be the ~ee act ~d
~ ~f s~d co~or~fion.
1999, before me appeared
being by me duly sworn, did
for UNIsite, Inc., a
~.~t~, State pf ~""
My Commission Expires:
[NOT~UXt, SE,a,L]
05/18/99