R06-144
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RESOLUTION NO. R 06- 14'1
A RESOLUTION OF THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA,
AUTHORIZING THE EXECUTION OF THE
ELEVENTH AMENDMENT TO THE TOWER SITE
LEASE AND JOINT USE AGREEMENT BETWEEN
THE CITY OF BOYNTON BEACH AND CINGULAR
WIRELESS AND PALM BEACH COUNTY
COMMUNICATIONS; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, upon recommendation of staff, the City Commission has determined
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that it is in the best interests of the residents of the City to execute a eleventh Amendment to
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the Tower Site Lease and Joint Use Agreement with Cingular Wireless and Palm Beach
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County Communications; and
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
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THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
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Section I.
The foregoing "Whereas" clauses are hereby ratified and confirmed as
20 being true and correct and are hereby made a specific part of this Resolution upon adoption
21 hereof.
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Section 2.
The City Commission of the City of Boynton Beach, Florida does
23 hereby authorizing execution of the Eleventh Amendment to the Tower Site Lease and Joint
24 Use Agreement with Cingular Wireless and Palm Beach County Communications, attached
25 hereto as Exhibit "A".
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Section 3.
This Resolution will become effective immediately upon passage.
C:\Documents and Settings\PrainitoJ\Local Settings\Temporary Internet Files\OLK I 04\1 Ith Amendment to Tower Site Lease.doc
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PASSED AND ADOPTED this lL day of August, 2006.
CITY OF BOYNTON BEACH, FLORIDA
ssioner - Mack
ct,~
Commissioner - Muir . Ferguson
ATTEST:
W1.~
C:\Documents and Settings\PrainitoJ\Local Settings\Temporary Internet Files\OLK I 04\11 th Amendment to Tower Site Lease.doc
Cell Site: WP44
Lease In: N001297
Address: 300 West Woolbright Road, Palm Beach, FL 33435
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ROb - 141.\
ELEVENTH AMENDMENT TO LEASE AGREEMENT
IOPTION TO SELL]
THIS ELEVENTH AMENDMENT TO LEASE AGREEMENT ("Amendment") dated as of the latter of the signature dates
below is entered into by and between CITY OF BOYNTON BEACH, a municipal corporation of the State of Florida ("Landlord")
and NEW CINGULAR WIRELESS PCS, LLC D/B/A CINGULAR WIRELESS, A DELAWARE LIMITED LIABILITY
COMPANY, as successor in interest to Palm Beach County Cellular Telephone Company ("Tenant").
RECITALS
A. Landlord and Tenant entered into that certain LEASE AGREEMENT dated March 31, 1996 ("Agreement"),
whereby Landlord leased to Tenant and Tenant leased from Landlord a portion of Landlord's property located at 300 West Woolbright
Road, Palm Beach, FL 33435 ("Premises").
B. Tenant has determined that its present use of the Premises is no longer consistent with the optimal operation of
Tenant's current communications network and, as an alternative to exercising its rights of termination under the Agreement, desires to
sell and transfer its improvements installed at the Premises and assign its interest in the Agreement to an, as yet, unidentified third
party .
C. In exchange for Tenant's efforts to assign the Agreement to a third party, Landlord agrees that rent may be abated or
modified as set forth below.
D. Since the inception of the Agreement, Tenant has moved its lease administration office and desires to modifY the
notice provision of the Agreement accordingly.
NOW, THEREFORE, in consideration of the foregoing, the payment of One Hundred and No/lOO Dollars ($100.00) to
Landlord within thirty days of the execution of this Agreement, and of the mutual obligations and agreements contained herein, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
I.
entirety.
INCORPORA nON OF RECITALS. The recitals set forth above are incorporated herein as set forth in their
2. ESTABLISHMENT OF INTERIM PERIOD / ABATEMENT OF RENT. Paragraph four (4) of the Agreement is
hereby amended by the addition of the following:
"(a) Notwithstanding Tenant's obligations to pay rent as set forth above, Landlord agrees to abate any and all rent
payments due from Tenant for a twenty four (24) month period commencing May I, 2006 and ending April 30, 2008 (the "Interim
Period"), subject to the following conditions:
(i) Landlord shall not be required to reimburse Tenant for any prepaid fees received by Landlord for any
portion of the Interim Period;
(ii) During the Interim Period, Tenant shall attempt to sell its improvements and assign the Agreement to a
third party ("Third Party"), such sale and assignment to be subject to the provisions of the Agreement except as set forth in (iv) below.
Notwithstanding any terms to contrary in the Agreement, if any, Landlord consents to the sale and assignment of the Agreement to the
Third Party. In addition, during the Interim Period, Landlord's right to unilaterally terminate the Agreement for any reason is
suspended.
(iii) During the Interim Period, Tenant agrees that it shall continue to abide by all other terms and provisions of
the Agreement, including, but not limited to, its obligations to carry insurance pursuant to the provisions of the Agreement;
(iv) In the event of a sale, Tenant shall provide to Landlord a fully-executed copy of the assignment and
assumption agreement of the Third Party and the Third Party shall be responsible for all Tenant obligations under the Agreement
thereafter, including the reinstatement of rent payments prorated on a go-forward basis from the date of the sale/transfer and
assignment; any assignment of the Agreement will require that rent payments under the Agreement increase by ten percent (lO%)
over the rent due at the inception of the Interim Period upon the effective date of the Assignment. Following the assignment, Tenant
MD7:3P 817106 Swinford:KF
LaridlQ.d'1NlftAtS
Cell Site: WP44
Lease In: N001297
Address: 300 West Woolbright Road, Palm Beach, FL 33435
will be relieved of all future performance, liabilities and obligations under this Agreement and will have no further obligations to
Landlord;
(v) Landlord's right to require Tenant to relocate its equipment, if any, is hereby abolished.
(vi) In the event of a sale and assignment, Landlord shall be entitled to twenty-five percent (25%) of the net
proceeds ofthe sale and assignment, payable by Tenant within sixty (60) days of receipt thereof from purchaser."
3. THIRD PARTY APPROVALS.
(a) Landlord recognizes that the Third Party's ability to use the Premises is contingent upon the suitability of the
Premises for Third Party's Permitted Use and the Third Party's ability to obtain and maintain all governmental licenses, permits,
approvals or other relief required of or deemed necessary or appropriate by Third Party for its use of the Premises, including without
limitation applications for zoning variances, zoning ordinances, amendments, special use permits, and construction permits
(collectively, the "Government Approvals"). Landlord authorizes the Third Party, at the Third Party's sole cost and expense to
prepare, execute and file all required applications to obtain Governmental Approvals for Third Party's Permitted Use under this
Agreement and agrees to reasonably assist Third Party with such applications and with obtaining and maintaining the Government
Approvals. In addition, Third Party shall have the right to initiate the ordering and/or scheduling of necessary utilities.
(b) Landlord agrees that the Third Party may obtain, at the Third Party's sole cost and expense a title report or
commitment for a leasehold title policy from a title insurance company of the Third Party's choice and may have the Property
surveyed by a surveyor of the Third Party's choice.
(c) Landlord agrees that the Third Party may also perform and obtain, at Third Party's sole cost and expense, soil
borings, percolation tests, engineering procedures, environmental investigation or other tests or reports on, over, and under the
Property, necessary to determine if the Third Party's use of the Premises will be compatible with Third Party's engineering
specifications, system, design, operations or Governmental Approvals. After the tests and investigations are completed, the Third
Party will be required to restore the Property to the condition that existed prior to the testing.
4. FAILURE TO ASSIGN AGREEMENT TO THIRD PARTY.
(a) In the event no purchaser is found, the Agreement will automatically terminate at the end of the Interim Period
without further action required by Landlord or Tenant. Landlord agrees that Tenant will leave and Landlord shall own all permanent
improvements on the Premises. Title to all permanent improvements will transfer to Landlord without a bill of sale, as-is, where-is,
without any warranty whatsoever, by operation of this Eleventh Amendment. Tenant retains the right to remove any and/or all of its
personal property prior to the conclusion of the Interim Period. Title to all of Tenant's personal property not removed will transfer to
Landlord without a bill of sale, as-is, where-is, without any warranty whatsoever, by operation of this Eleventh Amendment.
(b) Alternatively, prior to the conclusion of the Interim Period, in the event that Tenant determines it wants to retain its
site, Tenant may avoid the automatic termination of the Agreement by sending Landlord a written notice of its desire to retain the site.
If Tenant sends such a notice, the parties will be bound by all the terms of the Agreement. The resumed rent will be paid on or before
the fifth day of each calendar month in advance. For partial months occurring between the end of the Interim Period and before the
first of the following month, rent will be prorated.
5.
following:
NOTICE ADDRESS. The address for notices to Tenant, as provided for in the Agreement, is hereby changed to the
Cingular Wireless
c/o Wireless Asset Management
Cell Site #/Name WP44
P. O. Box 2088, Rancho Cordova, CA 95741-2088
with a copy to:
Cingular Wireless
A TTN: Real Estate Contracts
Cell Site #/Name WP44
6100 Atlantic Blvd., Norcross, GA 30071
MD7:3P 8/7106 Swinford:KF
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Cell Site: WP44
l"ease 10: N001297
Address: 300 West Woolbright Road, Palm Beach, FL 33435
and with a copy to:
Cingular Wireless
A TTN: Legal Department
Re: Cell Site #/Name WP44
] 5 East Midland Avenue, Paramus, NJ 07652
6. DEFINED TERMS. All defined terms used in this Eleventh Amendment that are not defined herein shall have the
same meaning ascribed to them as in the Agreement.
7. ACKNOWLEDGEMENT. Landlord acknowledges that: I) this Eleventh Amendment is entered into of the
Landlord's free will and volition; 2) Landlord has read and understands this Eleventh Amendment and the underlying Agreement and,
prior to execution of the Eleventh Amendment, was free to consult with counsel of its choosing regarding Landlord's decision to enter
into this Eleventh Amendment and to have counsel review the terms and conditions of this Eleventh Amendment; and 3) Landlord
has been advised and is informed that should Landlord not enter into this Eleventh Amendment, the underlying Agreement between
Landlord and Tenant, including any termination or non-renewal provision therein, would remain in full force and effect.
8. AGREEMENT REMAINS IN FULL FORCE. Except as set forth above, all other terms and conditions of the
Agreement shall remain the same and in full force and effect.
SIGNATURES APPEAR ON THE FOLLOWING PAGE
MD7:3P 817106 Swinford:KF
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Cell Site: WP44
Lease 10: N001297
Address: 300 West Woolbright Road, Palm Beach, FL 33435
written below.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment as of the last day and year
LANDLORD:
CITY OF BOYNTON BEACH, a municipal
<o'pornt;oo ~ Stat, o. f Florida
By: .&~
Name:
Title:
KLlR r BRESSNER
ell Y MANAGER
BOYNTON BEACH. Fl
. ('l ~ I .1 Girl /\ fi./" n J
WItness: ,':./'L-V'~ f ^-YJ.x ~
Print Name: L'U.fD' rO..t\.i-1 u~./? 1
TENANT:
NEW CINGULAR WIRELESS, PCS, LLC, A
DELA WARE LIMITED LIABILITY COMPANY
D/B/A CINGULAR WIRELESS
By:
Name:
Title:
MD7:3P 8/7106 S.....;nford:KF
Date:
Date:
Date:
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#.f"/. CITY ATTORNEY
Cell Site: WP44
Lease 10: N001297
Address: 300 West Woolbright Road, Palm Beach, FL 33435
LANDLORD ACKNOWLEDGMENT
CORPORATE ACKNOWLEDGEMENT
ST A TE OF F) 0 (' ,'cLQ...,
)
COUNTY OF Palm 8 t"1J f' 1,.. )
I CERTIFY that on a (.L~ ~ 6+ ~, 200k, Ii u..... t }3f'e..5S n e.r
personally came before me and acknow edged under oath that he or she:
. (a) is thet!.,i-l-y mllnQ.j~(" [title] of CITY OF BOYNTON BEACH, the corporation named in the attached
Instrument,
(b)
(c)
[name of representative]
was authorized to execute this instrument on behalf of the corporation and
executed the instrument as the act of the corporation.
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VALOR/E MOATS
MY COMMISSION II DD 346198
EXPIRES: September 17, 2008
Bonded Tn", NolalY Public UnderNriters
Notary Public:
My Commission Expires:
TENANT ACKNOWLEDGEMENT
STATE OF
COUNTY OF
)
) SS.
)
I certifY that I know or have satisfactory evidence that is the person who appeared
before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the of NEW CINGULAR WIRELESS,
PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY D/B/A CINGULAR WIRELESS, to be the free and voluntary
act of such party for the uses and purposes mentioned in the instrument.
DA TED:
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of
My appointment expires:
MD7:3P 8/7/06 Swinford:KF
5
The Cihj ol BolJnton Beach
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City Clerk's Office
100 E BOYNTON BEACH BLVD
BOYNTON BEACH FL 33435
(561) 742-6060
FAX: (561) 742-6090
e-mail: prainitoj@cLboynton-beach.f1.us
www.boynton-beach.org
August 22, 2006
JONATHAN SWINFORD
LEASE CONSULTANT
3721 VALLEY CENTRE DRIVE SUITE 300
SAN DIEGO, CA 92130
Re: Resolution No. R06-144 - Eleventh Amendment to the Tower Site Lease and
Joint Use Agreement between the City of Boynton Beach, Cingular Wireless and
Palm Beach County Communications
Dear Mr. Swinford:
Attached for your handling is the partially executed original Lease Agreement
mentioned above. I have also included a copy of Resolution No. 06-144 that was
approved by the City Commission at their regular meeting on August 15, 2006. Please
return the fully executed original or a fully executed copy of the Lease Agreement to
me for our Central File.
If you have any questions, please do not hesitate to contact me.
Very truly yours,
CITY OF BOYNTON BEACH
.~ Yrl. p~
Unet M. Prainito, CMC
City Clerk
Attachment
Copy to:
City Manager, Peter Wallace, Gwen Johnson, Central File
S:\CC\WP\AFTER COMMISSION\other Transmittal Letters After Commission\2006\)onathan Swinford - 11th Amendment to Tower
Site Lease.doc
America's Gateway to the Gulfstream
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Prainito, Janet
From: Lejeune, Carisse
Sent: Tuesday, August 22, 2006 1 :26 PM
To: Prainito, Janet
Subject: 11th Amendment to Cingular Agreement
Janet,
The 11 th Amendment to the Cingular Agreement was on the agenda for August 15th,
and it was approved. Has it been signed off on yet? The Cingular rep wanted it sent
to the address below. Please let me know where we are in the process.
Thanks,
Carisse.
Hi Carisse,
That is great to hear. Please execute in duplicate and send them to our new office address location below.
Contact me if you have any questions. Hope all is well.
Take care,
Jonathan Swinford
Lease Consultant
Md7
3721 Valley Centre Drive
Suite 300
San Diego, CA 92130
858-799-7865 direct
858-799-7850 main
858-630-4284 fax
isliVinford@mdZ.c:om
8/22/2006
Page 2 of2
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City Manager's Office
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach. FL 33425
Ph: (561) 742-6012
Fx: (561) 742-6011
e-mail: leieunec@ci.bovnton-beach.f1.us
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8/22/2006