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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a Bellsouth Mobility, Inc., dated September 26, 1991, and recorded January 15, 1992, ORB 7088, at page 1801, is hereby rescinded.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) 10 J g i v I • w • ■1r T li iti: Z ■ is • i� = ■ •--4.0 o� � .ab ■� i 4 d . ve•mob / , • e_ i tf i F £ .. 1 , \ WI / \ ii 9g3 if \ f b \\ , ` ` . • v .! I i. r 6 \ Cpl I or nay! 0 is. ii 111 • 0 iii • r . ... . a • • • . ma a . ium . im I. m in im ini im imi . m m in. mi ... I i n. . . .... i .; ) 1 Z ili ,- 11 -= j PIM v► 8 11 1 rn i 111 svaa:+era a BELLSOUTH MOBILITY INC A MIAMI, FLORIDA CELLULAR SYSTEM LEASE AGREEMENT t 11- x N A EXHIBIT "A" 0a IV N OPT 1 BA1. i BIL 1 11-1-44 1 1 _ 2-937-131-T f7 .-5 '' , • ...,:• 1 1401. 1* 11611* ...,.. .. I - , , -1 -'!,, 1- '.! ., . 1 r' iF ,,!‘ ilk,‘ 11413 10;9041 4 ,,.. .. r-13 ' <.1- ' ". ,.. -.., - s •- ...- , ', X' i ',A•4 ; ...,.A...' • , i Ot • ...' ,„,, ..,,,.... -1/: e , , ..i Oadd,r. a WO • ITEMS /1011-EX-YAL -. 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OF SOYNTON 'CACHO 1/11.116 67713 9.797•-Clt TA - .00 . -s e 4 BOYNTON BEACH FL' --- MEN PX 330Pi541...* ., - 412 ARKET 4 376771 ...f...„,.; ..: 33123 ,..... ,,- , . ,".-_, • ' ..',. 33E61 - 376776 41; -' „. /, -'''. " P/C Ott ACRES 13.13 ,,,, ,..„,......,.., ' ' ■ 'frr. 1401. t • 376171 ', EN VA 2-937-137-6 , t. -,, 5", •?., .., CH VA ' ' ' ' - 44,1 • - .- OTAL .00 . 44 0' - , • .,'„,...*; • , -, rs. 44', .6 43 45 33 14 000 0061 HIGH POINT 14 CONDO N2 LESSEE SUB 33-./4-43 -- 111 AND ... 410 7.104 eft TA .00 DAVID KEND LESSOR N 166 FT OF 14 419.26 f 01' LOT', UILDG 74131 5.797•-CH TA .00 • 325 MAIN ILYD 6 IN CR11,731 . 10. ARKET . 74611 BOYNTON BEACH FL 33435 • . t5 . .V;' , SSESS 746111 P/C 097 . - ' ;"•---' . -- A - - .., ACRES -.44.30 a...L. r.'. ..i- ' 2 ,.. - 1 ''.:,..- ' . ,.‘"; ,. "° ." • ' , ' . , . -,- 6.,..' -,- '', ,-- . "•<:,-",--,.., , ..,'": .,` .1 .. ,, t en VA .' 7 , _, "•,,, f 2-137-143-0 - ,„'...,, .. . 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LY0 3 OF 314 23RD AVE. (Si 14 . UILD0 - "-'4 - .9.737. Cot TA ' 110.52 ... 30YNTON SEACH FL ,„...r• .... 513 FT) - .._s 0. ARKET, 1210 .•-, .. ' 33435SALE YR 19 , DRS 3973 1.41W -- SSES3 11230 P/C 000 . ...,,,, ..- '.•'. ACRES ...4-;-•"` , e., ...--A., _ .- ..,-•: r11.;106 , "4.62 -...' -.•,i'' '`.` - ' '. . En VA _ , 11230 - . , .,... 2-937-156-2 L . i CH VA 112110 , . OTAL f, Iti.sa . , 1 . „ _■• t j I i ' '''''' ' * . • , 1: . ,'"' t. ' . 49. .-' ' ' ' I,' , ■•', ' fP" 4., , -',..' -.: 1 --- " . „ '; , : ... , 4. t . 4^litiv • ' ' . .1: 7:. '1 r ' ' "f,fr,.- r''' t . . :. r ' ........ ITEMS NON - ..•..,, NON EX TAX , EAA/DD DEBT SRA/DD RAINT 1 ISRARY , ) 1: . TOTat.'ci - A. nunz• TAX OTAL TAXES .. G 4 0 ',,..., ,.,.., 110.52 , _ .0C4 - 365.19 - • ..,. „ , - .6-TOT-GENERAL 202192 ,...-..--- 10.15 -. :. 00 . - -„.0. .•;'..0' '''-.. - - 0 ' ; 359 '-' 11 ''''' 4 f 650-69 ,•- 6.-,"■ ,,, , , ..krX - •- .4. '.. .. 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