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R00-091RESOLUTION NO. RO0-¢/ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, CONSENTING TO A SUBLEASE AGREEMENT FROM SPRINT SPECTRUM LP (SPRINT) TO METRICOM, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE SAID CONSENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, pursuant to the terms of a lease by and between Sprint Spectrum and the City of Boynton Beach, executed in August 1996, the City must consent to a sublease by Sprint Spectrum LP; and WHEREAS, the City Commission of the City of Boynton Beach, Florida, upon recommendation of staff, hereby consents to a sublease agreement from Spring Spectrum LP (Spring) to Metricom and authorizes and directs the Mayor and City Clerk to execute said Consent; 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 hereby consent to a sublease agreement from Spring Spectrum LP (Spring) to Metricom and authorizes and directs the Mayor and City Clerk to execute said Consent, which is attached hereto as Exhibit "A". Section2. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this ~r day of July, 2000. :r\consent-Sp~int-M~rocim062200 of Bo nton Be ch 1 O0 E. Boynton Beach Boul~ard P.O. Box 310 Boynton Beach, Florida 33425-0~ 10 (561) 742-6050 FAX: (561) 742.6054 IV-CONSENT AGENDA ITEM C.3 3une 13, 2000 Douglas P. Fulcher Sprint Sites USA East Region 1357 Hembree Road Suite 250 Roswell, GA 30076 Re: proposed sublease from Sprint Spectrum LP (Sprint) to Metricom with respect to that certain Lease by and between Sprint Spectrum and the City of Boynton 8each (''Lessor") made as of August, 1996 -3600 Miner Road, 8oynton Beach, FL Dear Mr. Fulcher: You asked us to consent to a sublease ("Sublease") to Metricom a part of the property leased to Spdnt under the original August 1996 Lease Agreement (Lease). Under the Lease, Sprint must seek our consent to enter into a Sublease. This document is intended to give Sprint and Metricom that consent. Pursuant to section 10 of the Lease, the City hereby gives its consent with the following conditions: 1. The Subleased property to Metricom shall only be used for such uses as are permitted under the Lease. Notwithstanding this consent, the Sublease to Metricom will be subject and subordinate to the Lease and if the Lease is terminated for any reason, the Sublease thereunder, will likewise terminate. 3. Sprint will remain the Lessee under the Lease and responsible for the payment of rent under the Lease and compliance with all other terms and "An Equal O~portunitylAffirmative Action/ADA Ern~loyer" COUNTY OF ,_ The foregoing instrument was acknowledged before me this day of , 2000, by , as the Mayor of The City of Boynton Beach, Florida, a municipal corporation, on behalf of said munidpality, who is personally krlown to me or who has produced as identification, Witness Nota~ Public TENANT Metdcom S-rATE OF FLORIDA COUNTY OF By: Name: T~e: The foregoing instrument was acknowledged before me this d~ 2000, by , as the Mayor of The City of Boynton Bea( municipal corporation, on behalf of said municipality, who is personally who has produced as identification. of , Florida, a town to me or S:ca/Agmnts Sprint Consent agreement Notary Public provisions of-the Lease, including but not limited to, insurance and indemnificaUon. 4. Hetricom shall also comply with insurance and indemnification forth in the Lease. 5. Sprint and Metricom shall comply with all ~ld~utes, laws, ordin~ regulations and lawful orders of the United States of America, .c Florida, Qb/.of Boynton Beach, Palm Beach Counb/, and any otl authority which may be applicable. )rovisions set 1ces, rules, tare of let public 6. All other terms and conditions of the Lease not revised by this remain unchanged and in full force and effect. Signed, sealed and delivered In the presence of: -. Witness LESSOR: THE CITY OF BOYN' R~rida~u.n~/al ( onsent shall )N BEACH STATE OF FLORZDA COUNTY OF PALM BEACH The forego~gjnstrument was acknowledged before me this~5 2000, by ~ t. ~tk,.~., as the Mayor of The City of Boynton Bea~ municipal~orporation, on bef~lf of said municipality, who is personally who has produced as identification. Signed, sealed and delivered In the presence of: Witness STATE OF FLORZDA Notary Public Con TENANT Spdnt Spectrum By: Name: Tfde: /of '~, I, Rofida, a 1own tO me or rbara M. Madden mis,fire ~ CC 760467 pims July t9. 2082 BONDEDTHRU ;- ~ *' C:ZTY OF BOYNTON BEACH TO: FROM: RE: MEMORANDUM Wilfred Hawkins, Support Services Manager,/'~ N cho as I. Igwe, Assistant City Att°rneyi'. ~,~ Telecommunication agreements with SpriC)tSp~m' Bell~uth and Metricom DATE: .luly 11, 2000 Pursuant to your request, I have revmewed the above referenced agn the following: Agreement with Sprint Spectrum: in August of 1996, the Oty and Sprint entered into a telecon agreement. Section 5.02 of the lease agreement provides Sprint the lease for four additional five-year terms. Section 10 provides shall not be sold, subleased, assigned or transferred without the wdU City. Such consent "shall not be unreasonably withheld." The initial annual rent under the agreement was $12,500. The agreer annual rent for each renewal term will be increased by an amoun cumulative percentage increase of the consumer price index (CPI). I understand that the Commission approved the Sprints request b condition that the Qb/be permitted access to the company's financial the three agreements referenced above were considered simull Commission, it appears that there may have been a mix up in contents of all three documents. In reviewing the Commission's 2000, the record shows that the Commission while considering the sublease were under the impression that Metricom and Sprint wil percent of their gross revenue. Thus, the Commission voted tc sublease to include the audit request to ensure that the Oty is rece under the agreement. While secUon ,~.1 of Metdcom agreement prov shall pay to the City on annual basis an amount equal to one pero revenue, there is no such provision in our agreement with Sprint. As indicated above, the agreement with Sprint provides for an annua based on the CPI and specifically calls for City's written consent f ~ements and offer munication lease option to extend at the agreement en consent of the ~ent provides that based upon the sublease with a 'ecords. Because aneously by the ~e provisions and ~inutes of .luly 5, pdnt's request for pay the City one modify Sprints ving its fair share des that Metricom ~nt of its adjusted increment on rent )r sublease which "shall not be unreasonably withheld". As ! indicated to you earlier, Sprint was adamant in giving any additional consideration (compensation) for getting our consent to sublease, stressing that there is no provision for it in the original agreement. As ! advised you earlier, there is a landlord tenant case (not in our jL risdiction and not related telecommunication towers) which found it unreasonable For a landlord to withhold consent to an assignment or sublease in exchan(e for additional compensation. ]:n' light of the foregoing, the Commission may War~ t to reconsider its decision to approve Sprint Spectrum's requestto sublease with condit on of audits. Agreement with BellSouth: !n Februa~ of 1995, the City entered into a five-year lease agreeme ~: with BellSouth. Section 4.1 of the agreement provides BellSouth with the option to extend it for four additional five-year te ,~ns. The initial annual rent was $12,000, to be~ adjusted annually using the cons~ner price index. Section 16 of the agreement provides ~hat it sha not be sold, subleaSed, assigned or transferred without the written col~sent of the City. Such consent "not to be unreasonably withheld." BellSouth proposes to increase the annual rent to $15,000. This pro ~osal is acceptable to the finance dept. Whi!e there is no requirement for addiUonal c)nsideration under the sublease proviston of the agreement, BellSouth proposes to offer the City additional $2,000 for its consent to ~sublease in this matter. The same casel; ~w analyzed under Sprint. Spectrum is applicable here as well. ! hope that this summ; ~ry would help the Commission in disposiUon of this matter. CC: .]ames Cherof, City Attorney S:ca/OW Mgr. Analysis of Tetecomm agmts