R96-031RESOLUTION NO. R96-~.~/
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, FLORIDA AND PALM BEACH
COUNTY CELLULAR TELEPHONE COMPANY; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Boynton Beach (City) is the owner of certain real
property known as the City's Little League Field, located at Woolbright Road in the City
of Boynton Beach, Florida; and
WHEREAS, Palm Beach County Cellular Telephone Company (Tenant) desires
to lease a portion of said real property with a right of way for access thereto, containing
approximately 1,000 square feet;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CiTY OF BOYNTON BEACH, FLORIDA, THAT:
~ The City Commission of the City of Boynton Beach, Florida hereby
authorizes and directs the Mayor and City Clerk to execute a Lease Agreement
between the City of Boynton Beach and Palm Beach County Cellular Telephone
Company, a copy of said Agreement being attached hereto as Exhibit "A".
~ This Resolution shall become effective immediately upon passage.
PASSED AND ADOPTED this ~ day of March, 1996.
CITY OF BOy, TON ~SA. CH, FLORIDA
Mayor //
vice Mayor -
aye) 15~o Tem
Commissioner /
ATTEST:
Commissioner
Pl~CCellTe~.Co,-Lease
3/1/96(DS$)
, y 4-3/
LEASE AGREEMENT
BETWEEN
THE CITY OF BOYNTON BEACH
AND
PALM BEACH COUNTY CELLULAR TELEPHONE COMPANY
This LEASE AGREEMENT (hereinafter referred to as "Agreement ") is made and
entered into this "day of` , 1996 between 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
Palm Beach County Cellular Telephone Company, whose address is 1920 Corporate
Drive, Boynton Beach FL, 33426 (hereinafter referred to as "TENANT ").
WITNESSETH:
WHEREAS, CITY is the owner of certain real property known as the City's Little
League Field, located at Woolbright Road 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
knowledged, 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 Property located within
CITY's Little League Ball Field at Woolbright Road, 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 S.W. 3rd Street, to the demised
premises, (including TENANT's equipment shelter and lighting structure as referenced
herein), s~d Property. and right of way for access being substantially as described herein
in Exhibit "A" and as shown enclosed within red lines on Exhibit "A" attached hereto and
made a part hereof. CITY shall cooperate with TENANT in its effort to obtain utility
services along said right of way by signing such documents or easements as may be
required by said utility companies. In the event any public utility is unable to use the
aforementioned right of way, the CITY hereby agrees to grant an additional right of way
either to the TENANT or to the public utility at no cost to the TENANT.
3. CITY also hereby grants to TENANT the right to survey said Property, and said
survey shall then become Exhibit "B", which shall be attached hereto and made a part
hereof, and shall control in the event of discrepancies between it and Exhibit "A". Cost for
such work shall be borne by the TENANT.
4. This Agreement shall be for an initial term of five (5) years, which shall commence
upon the issuance of a certificate of occupancy by CITY for TENANT's improvements as
herein identified, unless otherwise terminated pursuant to Paragraph 5, below.
Consideration for the initial term and ali extensions thereof shall be provided by TENANT
as follows:
a. Dudng the initial term of. this Agreement, CITY shall be paid a first year rental fee
payment of EIGHTEEN THOUSAND AND NO/100 DOLLARS ($18,000.00) d u ring the first
rental year. Each Subsequent year the annual rental fee payment shall be FIFTEEN
THOUSAND AND NO/100 DOLLARS ($15,000.00). The initial payment shall be due and
payable to CITY thirty days after issuance of the Certificate of Occupancy by the City and
subsequent annual payments thereafter shall be on the anniversary of the lease year. A
lease year is the twelve (12) months commencing with the anniversary of the lease date
and terminating with the last day of the twelfth month thereafter.
b. TENANT shall have the option to extend this Agreement for four (4) additional five
(5) year terms, and such extensions shall automatically occur unless TENANT gives CITY
written notice of its intention not to extend this Agreement at least six (6) months prior to
the end of the then current term. CITY shall have the option to cancel this Agreement after
the third five yea~ option term by giving TENANT written notice of its intention to do so at
least six (6) months prior to the end of the then current term.
c. Subject to the terms of paragraph 4.f. of this Agreement, during the initial five (5)
year term, CITY shall be paid a first year rental fee payment of EIGHTEEN THOUSAND
AND NO/100 DOLLARS ($18,000.00). Each subsequent year, dudng the initial term of this
agreement, the annual rental fee payment shall thereafter be FIFTEEN THOUSAND AND
NO/100 DOLLARS ($15,000.00). During each additional five (5) year term the annual
rental fee shall be adjusted annually to equal the purchasing power of the previous year.
The basic annual rental fee shall be adjusted by any change in the Index now known as
"United States Bureau of Labor Statistics, Consumer Price Index, for all Urban
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Consumers," hereinafter referred to as the "Index". If such Index shall be discontinued
with no successor or comparable successor index, the parties shall attempt to agree upon
a substitute 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 toP 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. Commencing with the first five year extension term (lease year six) of the
Agreement, if so extended, the annual rental amount 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 foot (100') 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
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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 pedorm all other acts and bear expenses associated with
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 purp.,o, ses, 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 ti' ; CITY. Upon such termination, this Agreement
shall become null and void and all the [ have no further obligations, including
the payment of money, to= each other, shall offer CITY the first option to
certain remaining improvements at such time
agreed upon sum of One
Hundred 100.00): of such notice of
termination in which to exercise this option;
6. 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.
7. CITY agrees that TENANT may self-insure against any loss or damage which
could be covered by a comprehensive general public liability insurance policy.
8. 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 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
1995 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.
9. 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
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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.
10. 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.
11. CITY covenants that TENANT, on paying the rent and performing the covenants
shall peaceably and quietly have, hold and enjoy the Leased Property.
12. 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.
13. 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.
14. This Lease Agreement and the performance thereof shall be governed,
interpreted, construed and regulated by the laws of the State of Florida.
15. 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.
16. 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):
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City of Boynton Beach
c/o City Manager
100 East Boynton Beach Boulevard
P.O. Box 310
Boynton Beach, Florida 33425-0310
TENANT:
A. T. & T. WirelesS Services
c/o James E. Randall
1920 Corporate Drive
Boynton Beach, FL 33426
17. This Agreement shall extend to and bind the heirs, personal representatives,
successors and assigns of the parties hereto.
18. 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.
19. 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 TEN/~NT'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.
20. CITY shall hold TENANT harmless from and indemnify TENANT against and from
any damage, losS expenses or liability resulting from the dlscovery by any person of
hazardous substance generated, stored, disposed of, or tlansported to or over the
Preperty, as long as suCh sUbstance was not stores, disposed of, or transported to or over
the Property by TENANT, its agents, contractors, employees, o[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 uLse of the subject Property.
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21. 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 service rendered in connection with any enforcement or breach of
contract, including appellate proceedings and post judgment proceedings.
22. 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, any 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.
23. 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:
Print Name ~//1~/
Print-N~11ne
AP~,~RM:
C~ ATTORI~'-~
STATE OF FLORIDA
COUNTY OF PALM BEACH
CITY OF BOYNTON BE~_ACH
Attest: ~~,. ~
7
WITNESS my hand and official seal this ~ ~ ~
__ day of March, 1996.
NOTARY PUBLIC
Print Name ~-'-¢'¢_... ~'--~ b ~ n ~_5
TENANT
My Commission Expires:
~.- -~ -:¥;~. EVE EUBANKS
~.~..:~ MY COMM,S$,ON, CC276705
Signed, sealed and delivered
~,'-' ' '"" ,,~ame~ (///
/
STATE OF FLORIDA
Palm Beach County Cellular Telephone Co.
Attest:
COUNTY OF PALM BEACH
I HEREBY CERTIFY that on this//,~ day of March, 1996, before me personally
appeared ~~i~L, of Palm B-----~ach County Cellular Telephone Company,
to me weJJ known to be the individual 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/~"
Print Name~~,.~
My Commission Expires:
9