96-22097 RESO Inc
RESOLUTION NO, 96-22097
A RESOLUTION OF THE MA YOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE A LEASE AGREEMENT WITH
LA GORCE PALACE, INC., FOR THE USE OF
CERTAIN ROOM AND ROOF AREAS FOR THE
PLACEMENT AND OPERATION OF PUBLIC SAFETY
COMMUNICATIONS EQUIPMENT.
WHEREAS, the City received a notice of termination to remove certain public safety
microwave and radio equipment currently located on the roof of the Parkview Condominium building
located at 7441 Wayne Avenue, Miami Beach, pursuant to a Lease Agreement with Parkview dated
March 6, 1987 ; and
WHEREAS, in response to the aforementioned notice, the City has identified an alternative
site at the La Gorce Palace building, located at 6301 Collins Avenue, Miami Beach, and has
completed engineering studies to determine suitability; and
WHEREAS, the City is desirous of using the La Gorce Palace building as a radio site to
service the northern-end of the City; and
WHEREAS, the La Gorce Palace, Inc., as landlord, is desirous of entering into the attached
long term Lease Agreement with the City.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Clerk
are authorized to execute the attached Lease Agreement with La Gorce Palace, lnc" fer us of certain
room and roof areas for the placement and operation of certain public safety com
equipment.
PASSED and ADOPTED, this 11 th day of
Attest:
J2oluA6 rAAck-
City Clerk
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CITY
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CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
COMMISSION MEMORANDUM NO. ~
TO:
Mayor Seymour Gelber and
Members of the City Commission
DATE: September 11, 1996
FROM:
Jose Garcia-pedrojf!a
City Manager
A RESOLUTION A ORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LEASE
AGREEMENT WITH LA GORCE PALACE, INC., FOR THE USE OF CERTAIN ROOM AND
ROOF AREAS AT THE LA GORCE PALACE BUILDING FOR THE PLACEMENT AND
OPERATION OF PUBLIC SAFETY COMMUNICATIONS EQUIPMENT.
SUBJECT:
RECOMMENDATION
Adopt the Resolution
BACKGROUND- P ARKVIEW POINT
On March 6, 1987, the City of Miami Beach entered into an agreement with the Parkview Point
Condominium Association, Inc. (parkview) for the placement of public safety radio equipment. This
agreement was similar to the one with Tower 41 Condominium Association, Inc.
In 1992, Parkview gave Notice of Termination to the City. Concerns relative to effects of microwave
radiation were addressed by the City, resulting in Parkview's Board of Directors rescinding their
earlier decision. Again, in 1995, Parkview gave Notice of Termination to the City. Concerns relative
to microwave radiation and the commercial value of the roof area to cellular telephone operators
were addressed by the City, resulting in the Board of Directors rescinding their earlier decision. The
City then entered into contract negotiations with the Parkview for a long-term lease.
In early 1996, the Parkview Board of Directors rejected the City's proposal for a long-term
agreement and insisted that it remain a one-year term, Concurrently, they re-instated the Notice of
Termination, unless the City met their terms. Subsequently, the City located an alternate site at
LaGorce Palace and has since installed new microwave equipment as part of the PCS PrimeCo
relocation agreement. The City will be removing the equipment located at Parkview following the
expiration of the Notice of Termination or the successful relocation of the microwave equipment,
whichever occurs first.
151
Agenda Item C. 1 L
Date Q-ll-<1.k
La Gorce Palace Inc.
September 11, 1996
Page-2-
CONTRACT TERMS
The terms of the agreement are similar to the ones recently agreed to with Tower 41, Inc.
The major terms of the agreement with La Gorce Palace, Inc., are:
1. EFFECTIVE DATE - Retroactive to June 1, 1996,
2. TERM - Twenty (20) years beginning on the Effective Date. City has the exclusive right to
cancel by giving 360 days notice.
3. RENT - $13,000 annually. Annual CPI increase of three percent (3%).
4. ELECTRICITY - City will sub-meter and reimburse costs for actual consumption.
5. OTHER - Landlord shall not lease other roof space for other purposes, if such purposes
would interfere with the operations of the City's public safety radio communications.
The complete agreement is contained herein as Attachment A
ANAL YSIS
The radio equipment located at La Gorce Palace provides the vital microwave link to ensure
continuous public safety radio communications between the northern and mid-beach areas with the
central dispatch center located in the Police Headquarters Building.
The long term agreement (20-years) provides the City with the non-interference and guarantee
" required for the continuous operation of the public safety communication system.
.
~Y.\lFL:me
;.
152
Author: CherylGorchik-Julian at C-H-PO
Date: 5/5/97 5:11 PM
Priority: Normal
TO: PhyllisKoch
CC: MercediaWilliams
TO: Robertparcher
Subject: Re: Sept 11, 1996 - Item C7L
------------------------------------ Message Contents
Bob - Per our conversation earlier today, I have been trying to locate
the originals since Mercy called me about this over a month ago. We
have finally located them and are passing it back to the City
Attorney's Office with some adjustments (which I hope will be minor)
La Gorce is asking for.
Reply Separator
Sept 11, 1996 - Item C7L
Robertparcher at C-H-PO
5/1/97 3:53 PM
Subject:
Author:
Date:
**********************************************************************
C7L Commission Memorandum No. 499-96
A Resolution Authorizing the Mayor and City Clerk to Execute a Lease
Agreement with La Gorce Palace, Inc., for the Use of Certain Room and
Roof Areas for the Placement and Operation of Public Safety
Communications Equipment.
Administration Recommendation: Approve the Resolution.
(Management and Budget)
ACTION: Resolution No. 96-22097 adopted. Peter Liu to handle.
**********************************************************************
I do not have an executed copy of this lease.
Afteraction: .... .lease agreement with La Gorce Palace, Inc., for use
of certain room and roof areas for the placement and operation of
certain public safety communications equipment.
This is a twenty (20) lease. Can you please get the Landlord of La
Gorce Palace, Inc. to sign the lease agreement. I'm assuming IT has
the original agreement.
Author: Robertparcher at C-H-PO
Date: 5/1/97 3:53 PM
Priority: Normal
Receipt Requested
TO: CherylGorchik-Julian
TO: PhyllisKoch
CC: MercediaWilliams
Subject: Sept 11, 1996 - Item C7L
------------------------------------ Message Contents ------------------------------------
**********************************************************************
C7L Commission Memorandum No. 499-96
A Resolution Authorizing the Mayor and City Clerk to Execute a Lease
Agreement with La Gorce Palace, Inc., for the Use of Certain Room and
Roof Areas for the Placement and Operation of Public Safety
Communications Equipment.
Administration Recommendation: Approve the Resolution.
(Management and Budget)
ACTION: Resolution No. 96-22097 adopted. Peter Liu to handle.
**********************************************************************
I do not have an executed copy of this lease.
Afteraction: .... .lease agreement with La Gorce Palace, Inc., for use
of certain room and roof areas for the placement and operation of
certain public safety communications equipment.
This is a twenty (20) lease. Can you please get the Landlord of La
Gorce Palace, Inc. to sign the lease agreement. I'm assuming IT has
the original agreement.
LEASE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH ..
AND
LA GORCE PALACE, INe.
This Lease Agreement (the "Agreement") is made on this day of
. 1996 between La Gorce Palace, Inc. ("Landlord") and The City of Miami
Beach, a Municipal Corporation of the State of Florida ("Tenant").
In consideration of the execution of this Agreement, the mutual terms, covenants
and conditions contained herein and other good and valuable consideration, the receipt of
which is hereby acknowledged from one party to the other, the Landlord and Tenant agree
as follows:
ARTICLE I
PREMISES
1.1 Landlord hereby leases to Tenant and Tenant hereby leases from Landlord,
a portion of the building of the Landlord ("Building") located on that certain real property
of Landlord known as 6301 Collins Ave., Miami Beach, FL 33141, County of Dade,
State of Florida (the "Parent Tract"). The portion of the Building hereby leased to Tenant
consists of certain positions on the roof of the Building for the mounting of various
antennas, associated equipment, and microwave dishes, hereinafter referred to as the
"Rooftop Space", together with that certain space consisting of 90 square feet of rentable
Building space located in the penthouse of the Building (the "Equipment Room Space").
The Rooftop Space shall be those certain positions on the roof of the Building upon which
Tenant's antennas are mounted, which shaH be at sufficient, but reasonable height, now or
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in the future, so that the signals transmitted and received thereby will not be impeded by
the Building or any other structure mounted thereon. The exact location on the Building
where the antennas will be mounted is depicted in Exhibit A. The Rooftop Space and the
Equipment Room Space are hereinafter collectively referred to as the "Leased Site" and
shall be more particularly described in Exhibit A which shall be attached hereto and made
a part hereof
1.2 Landlord grants Tenant, at Tenant's sole expense, the right to survey the
Leased Site and to substitute the survey legal descriptions of the Rooftop Space and the
Equipment Room Space.
1.3 Landlord agrees that, during the Term of this Agreement, (hereafter
defined), Tenant shall have a non-exclusive easement for access to the Leased Site on a
twenty-four (24) hour basis, seven (7) days a week and across that portion of the Parent
Tract and the Building necessary to access the Leased Site from the nearest public right-
of-ways adjacent to the Parent Tract, for the purposes of installation, maintenance, repair
and removal of the Communications Equipment, as said term is hereinafter defined.
Tenant's representatives and designated vendors servicing Tenant's Communications
Equipment shall also be allowed access to said Leased Site when service is needed;
provided, however, that Tenant agrees that all routine maintenance and repairs shall be
performed Monday thru Friday, 9:00 am to 5:00 pm, except in cases of emergency, in
which case, the provisions of the preceding sentence shall apply. Tenant further agrees
that any employee, contractor, subcontractor, representative or agent directed by Tenant
to install, maintain, remove or repair Tenant's Communications Equipment will be covered
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by the liability policy described in article VII of this Agreement. Tenant is responsible for
the cost of such activities.
1.4 In the event that Landlord proposes to lease Roof Space and/or room to
another vendor, said vendor shall conduct, at its sole cost and expense, an engineering
study to determine if vendor's equipment transmits radio waves which interfere with
Tenant's 800MHz public safety communications system and/or microwave receiver and
transmitter equipment. If the study reveals that such interference occurs, or is likely to
occur, the vendor will not be allowed to set up its equipment on the premises. If the study
reveals no interference and the vendor is allowed to operate equipment on the premises,
but later vendor's equipment is found to interfere with Tenant's equipment, the vendor's
equipment will be shut down until the vendor corrects the interference problem. Said
vendor(s), at its sole cost and expense, shall take all necessary steps to correct and
eliminate such interference, which may include the addition of nonperformance degrading
equipment to the vendor's equipment causing said interference. If such interference
cannot be eliminated, Tenant may terminate the Agreement without further obligation on
either party with respect to such equipment.
1.5 AIl other vendors, if any, must operate all equipment under the guidelines
of the Federal Communications Commission (FCC) and be in compliance with all
applicable rules and regulations, including obtaining an FCC license prior to operating said
equipment.
1.6 Tenant shall be responsible to Landlord for payment of electricity utilized
by Tenant. Payment of electricity utilized during the previous month shall be made to
Landlord with the current monthly rental payment. Calculation of payment shall be based
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on the actual kilowatt hours used times an average rate per kilowatt hour and any
',:".-
applicable demand charges.
1.7 An electrical sub-meter installed by Tenant will determine the actual usage.
The rate per kilowatt hour will be determined annually as of October 1 S\ using Florida
Power & Light (FP&L) current billing rates and billing structure for the Landlord's
Building. Tenant will notifY Landlord in writing, in the format prescribed in Exhibit B, of
the average rate per kilowatt based on FP&L's information.
1.8 Tenant agrees to provide for the installation and maintenance of air
conditioning equipment of the approximate size 2.5 tons or more if required by the heat
load. Said air conditioning equipment shall be installed on the wall as shown in Exhibit A.
1.9 Tenant shall also be responsible for payments of any other utilities and
expenses whatsoever which are incurred by either Tenant or Landlord relative to Tenant's
installation and usage of the Leased Site.
ARTICLE II
TERM
2.1 The term of this Agreement shall be for twenty (20) years beginning on'the
1th of June, 1996 (the "Term").
2.2 Tenant shall have the right to cancel this Agreement, at its sole discretion,
without cause and for convenience, at any time by giving Landlord three hundred sixty
(360) days written notice in advance of said cancellation.
ARTICLE ill
RENT
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3.1
During the first (1 It) year of this Agreement starting September 1. 1996,
;,.' A;.
Tenant shall pay an annual rental payment in the amount of Thirteen Thousand and Dollars
($13,000.00), in equal monthly installments, plus applicable sales tax, to be paid on the
first (1 It) day of the month, in advance, to Landlord or its written designee.
3.2 Beginning with the second year of this Agreement, and for each successive
year that this Agreement shall remain in effect, the monthly rental payment for each
successive year shall be increased by three (3%) percent, at the commencement of each
such year thereafter.
ARTICLE IV
USE
4.1 Landlord hereby grants permission to Tenant to install and operate the
following and associated equipment on or in the Leased Site for the purposes of
constructing, maintaining and operating a communications facility and uses incidental
thereto:
4.1.1 10 Ghz. transmitter and receivers, microwave dish antenna, UPS
system, UPS batteries and battery charger system to be located in, on or over the
Rooftop Space, now or any time during the Term of this Agreement.
4.1.2 Flexible coaxial transmission lines between antennas and
communications equipment, to be anchored and installed on the Leased Site in
accordance with good and accepted engineering practices, together with the right
to run such lines and other necessary lines between the Rooftop Space and the
Equipment Room Space.
4.1.3 800 MHz. two-way radio communications, equipment consisting of
two-way transmitters, receivers, accessories and other property to be installed in
the Equipment Room Space.
4.1.4 At Tenant's option, Tenant shall have the right to locate an
emergency generator on the Parent Tract at a place mutually acceptable to
Landlord. Further, Landlord agrees that, in an emergency, Tenant shall be
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, .... permitted to run temporary power lines between the Rooftop Space and the
Equipment Room Space necessary to provide temporary emergency electrical
power.
4.2 For purposes of this Agreement, all of Tenant's equipment, panels,
generator, cables, wires, antennas, microwave dishes and accessories shall hereinafter
collectively be referred to as the "Communications Facility" and any improvements made
by Tenant to the Leased Site pursuant to the terms of this Agreement are hereinafter
referred to as the "Improvements".
4.3 Landlord hereby acknowledges and agrees that the Communications
Facility and Improvements placed upon the Leased Site by the Tenant are and shall remain
the property of the Tenant and shall not be deemed to be a fixture upon the Leased Site.
Landlord grants Tenant a non-exclusive easement in, over, across and through the Parent
Tract as may be reasonably required during construction, installation, maintenance, repair,
replacement and operation of the Communications Facility and the Improvements.
4.4 Upon termination of this Agreement, Tenant shall remove its
Communications Facility and Improvements from the Leased Site within ninety (90) days
of the termination date and, in the event the Communications Facility is transferred to
another site, then within ninety (90) days of Tenant's final acceptance of the substitute
site. Tenant shall also restore the Leased Site to, as near as practical, a reasonable
condition under the circumstances, except normal wear and tear, and except for
enhancements made by Tenant to the Building pursuant to the terms of this Agreement.
4.5 Tenant shall have the right to terminate this Agreement at any time upon
the occurrence of any of the following events:
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.4.5.1 If the approval of or issuance of a license or permit by any agency,
board, court or other governmental authority necessary for the construction and/or
operation of the Communications Facility as now or hereafter intended by the
Tenant (the "Approvals") cannot be obtained, or is revoked, or public opposition
is unreasonable under the circumstances, as determined by Tenant, or Tenant
determines the cost of obtaining and retaining such Approval is unreasonable in
Tenant's sole discretion.
4.5.2 If Tenant determines, in its sole discretion, based upon soil bearing
tests, radio frequency propagation tests, or interference with Tenant's reception or
transmission, that the Leased Site is not appropriate for the uses intended by
Tenant (i) upon not less than thirty (30) days written notice of termination of this
Agreement by Tenant pursuant to the terms of Subsections 4.5.1 of 4.5.2 above,
or (ii) in the event that the Approvals described in Subsection 4.5.1 above have not
been initially received by Tenant within three hundred sixty-five (365) days (the
"Cancellation Date") from the date of the final execution of this Agreement by all
parties (the "Execution Date"), this Agreement shall automatically terminate and
neither party shall have any further rights or obligations arising hereunder, except
that Tenant shall have the obligation to remove the Communications Facility and
any Improvements from the Leased Site, and except for those rights and
obligations that are to survive the termination of this Agreement pursuant to the
expressed terms of this Agreement. Notwithstanding anything contained herein to
the contrary, the Cancellation Date shall be automatically extended to seven
hundred thirty (730) days from the Execution Date of this Agreement unless
Tenant provides Landlord with notice to the contrary prior to the expiration of the
original Cancellation Date. Following the Execution Date, Tenant shall make a
diligent and best effort to obtain all of the Approvals. Landlord agrees to
cooperate with Tenant in securing all of the Approvals referenced in Subsection
4.5.1, above, including, without limitation, any required site plan/zoning approvals
for the Leased Site. Upon the request of Tenant, Landlord shall execute and
deliver forms and applications as are necessary and appropriate to obtain such
Approvals. Tenant reserves the right to contest and/or appeal, to the extent
determined by Tenant, in Tenant's sole discretion, any adverse governmental or
judicial decision or determination relative to the issuance of any such Approvals.
All costs arising out of the procurement of such Approvals shall be borne by
Tenant.
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ARTICLE V
LIABILITY AND INDEMNITY
Subject to and limited by Article VII, Tenant agrees to indemnify and hold
Landlord harmless from all claims (including costs and expenses of defending against such
claims, through counsel designated by Tenant) arising from the negligence or willful
misconduct of Tenant or Tenant's agents or employees in or about the Leased Site.
Landlord agrees to indemnify and hold Tenant harmless from all claims (including costs
and expenses of defending against such claims) arising from the acts or omissions of
Landlord, Landlord's agents, employees, contractors, or other tenants of Landlord
occurring in or about the Leased Site.
ARTICLE VI
DEFAULTS AND REMEDIES
6.1 Notwithstanding anything in this Agreement to the contrary, Tenant shall
not be in default under this Agreement until:
6.1.1 Fifteen (15) days after actual receipt of written notice thereof from
Landlord of the non-payment of rent or other sums due under this Agreement~ or
6.1.2 Thirty (30) days after actual receipt of written notice of any other
default from Landlord; provided~ however, where any such default cannot
reasonably be cured within said period, Tenant shall not be deemed to be in default
under this Agreement if Tenant commences to cure such default within said period
and thereafter diligently pursues such cure to completion (an "Event of Default").
ARTICLE VII
INSURANCE
Tenant is self-insured for all potential liability resulting from Tenant's negligence in
accordance with and subject to the limitations of Section 768.28, Florida Statutes. The
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Tenant maintains a self-insurance program that will provide coverage for all bodily injury
and property damage claims which may, as it relates to the Tenant's use, occupancy or
maintenance of the Leased Site, arise from the negligent acts of the Tenant's employees or
agents. Tenant agrees to provide Landlord with a notarized letter evidencing the extent of
its insurance coverage.
ARTICLE vm
SALE OF THE PARENT TRACT
Should Landlord at any time during the Term of this Agreement decide to sell or
lease all or any part of the Building or the Parent Tract, it is hereby agreed that this
Agreement shall in no way be affected. The Agreement will be binding and in full force
and effect. Landlord agrees not to sell, lease, use, or permit to be used any other portions
of the Building or the Parent Tract, or property contiguous thereto owned or controlled
by Landlord, for the placement of other communications facilities or for. any other
purposes if such other communication facilities or other use would interfere with the use
of the Leased Site by Tenant. Notwithstanding anything contained herein to the contrary,
in the event that any communications equipment hereafter affixed to the Building or' the
Parent Tract interferes with the Tenant's Communications Facility, Landlord shall cause
such interfering communications equipment to be removed on an emergency basis.
ARTICLE IX
COVENANT OF OUIET ENJOYMENT
Tenant shall, upon paying the rent and performing the covenants and conditions
herein, shall peaceably and quietly hold and enjoy the Leased Site during the Term of this
Agreement. Landlord covenants that Landlord is seized of good and sufficient title and
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interest to the Parent Tract, including the Leased Site, and has full authority to enter into
:ri) .~
and execute this Agreement.
ARTICLE X
SUBORDINATION AND NON-DISTURBANCE
At Landlord's option, this Agreement shall be subordinate to any deed to secure
debt, deed of trust, mortgage, or similar instrument (collectively "Mortgage") by Landlord
which from time to time may encumber all or part of the Leased Site; provided however,
the holder of every such Mortgage shall recognize the validity of this Agreement in the
event ofa foreclosure of Landlord's interest, and Tenant's right to remain in occupancy of
the Leased Site as long as Tenant is not in default of this Agreement, by executing a non-
disturbance agreement in a form reasonably acceptable to the Tenant. Tenant agrees to
execute in a timely manner whatever instruments as may reasonably be required to
evidence this subordination clause. In the event the Leased Site is currently encumbered
by a Mortgage, Landlord, not later than thirty (30) days after this Agreement is fully
executed, and as a condition precedent to Tenant's obligation to pay rent hereunder, shall
obtain and furnish to Tenant a non-disturbance instrument in a form acceptable to Tenant.
ARTICLE XI
TITLE INSURANCE
Tenant, at Tenant's option, may obtain title insurance on the Leased Site.
Landlord, at Landlord's expense, shall cooperate with Tenant's efforts to obtain such title
. insurance policy by executing documents or obtaining requested documentation as
required by the title insurance company. At Tenant's option, should the Landlord fail to
provide the requested documentation within thirty (30) days of Tenant's request, or fail to
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, provid~ the non-;disturbance instrument(s), Tenant may withhold and accrue the monthly
rental until such time as the requested document(s) is received or Tenant may terminate
this Agreement.
ARTICLE XII
HAZARDOUS SUBSTANCES
In the event Hazardous Substances, as said term is hereinafter defined, are
, discovered on, in or under the Leased Site as of the Commencement Date or thereafter,
except as a result of any act or omission of Tenant, Landlord, at its sole expense, shall,
without interference with Tenant's use and occupancy of the Leased Site, remove all such
Hazardous Substances in accordance with all applicable laws, rules, ordinances, and
regulations (the "Removal"). Unless such Hazardous Substances are deposited in, on, or
under the Leased Site by an act or omission of Ten ant, Landlord shall indemnifY and hold
Tenant harmless against any claims arising out of such Hazardous Substances including all
of Tenant's attorney's fees and costs (the "Indemnity"). In the event Hazardous
Substances are discovered on, in or under the Leased Site solely as a result of any act or
omission of Tenant, Tenant shall be obligated to conduct the Removal and indemnifY
Landlord as to any claims arising out of such Hazardous Substances. For the purposes
hereof, the term "Hazardous Substances" shall mean pollutants, contaminants, toxic or
hazardous substances or wastes, oil or petroleum products, flammable or any other
substances whose nature and/or quantity of existence, use, release, manufacture or effect
renders it subject to Federal, state or local environmental, health, community awareness or
safety laws or regulations, now or hereafter enacted or promulgated by any governmental
authority or court ruling, or any investigation, remediation or removal. Further,
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.... ~-
. _. .Jfazarcious Substances shall be required to be removed from the Leased Site only :f
required by the proper governmental authorities.
ARTICLE xm
ASSIGNMENT AND SUBLETTING
With the exception of Tenant's principal, affiliates or subsidiaries of its principal or
to any company upon which Tenant is merged or consolidated, Tenant shall not assign or
encumber its interest in this Agreement or in the Leased Site, or sublease all or any part of
the Leased Site, without Landlord's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed. Consent by Landlord to assignment or
subletting shall be deemed to be unreasonably withheld if the proposed assignee is of such
financial standing and responsibility at the time of such assignment as to give reasonable
assurance of the payment of all rent and other amounts reserved in this Agreement and
compliance with all of the terms, covenants, provisions and conditions of this Agreement.
Should this Agreement be assigned to any entity other than the Tenant's principal,
affiliates or subsidiaries, Landlord shall be free to renegotiate the lease terms and the rent
amount. If the assignment of this Agreement results in remuneration to Tenant by the
assignee, Landlord shall be free to renegotiate the rent payment due.
ARTICLE XIV
NOTICES
AIl notices hereunder must be in writing and shall be deemed validly given if sent
by certified mail, return receipt requested, or by courier or by overnight delivery,
addressed as follows (or to any other address that the party to be notified may have
designated to the sender by like notice):
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. TENANT:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With copy to: City Attorney
~'
" ~~
LANDLORD: La Gorce Palace, Inc.
6301 Collins Ave.
Miami Beach, FL 33141
With copy to: Property Manager
(Landlord's site management company of record, which is
subject to change by Landlord) :
Spectrum Site Management
510 Bering Drive Suite 310
Houston, Texas 77057
Attn: Site Manager - La Gorce Palace
ARTICLE XV
TENANT MORTGAGE
Landlord covenants and agrees that, at all times during the continuance of this
Agreement, and subject to Landlord's prior written approval, which approval shall not be
unreasonably withheld, Tenant shall have the right to mortgage or convey by deed or trust
or other instrument adequate for the purpose of securing any bona fide indebtedness of
Tenant, this Agreement or the leasehold interest of Tenant created hereby, together with
all of Tenant's right, title and interest in and to the Communications Facility,
Improvements, and any other equipment, towers or trade fixtures placed on the Leased
Site by Tenant, provided that such mortgage, conveyance or encumbrance, nor any
foreclosure thereof, nor any purchase thereunder, shall impair or abridge the rights of
Landlord. In the event of any such mortgage conveyance or assignment, Landlord's lien
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" '... sha!!.'re' superior a.."1d shall not be subordinate to any such debtor's lien on such ,-
lmprovements, equipment, towers, or trade fixtures.
ARTICLE XVI
CONDEMNATION
If the whole of the Leased Site or such portion thereof as will, in Tenant's sole
judgment, make the Leased Site 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 Tenant and Landlord as
of that date. Any lesser condemnation shall cause the rental payable hereunder to be
reduced by such percentage as the area so condemned bears to the entire Leased Site.
Nothing in this provision shall be construed to limit or affect Tenant's rightto an award of
compensation of any eminent domain proceeding for the Improvements or Tenant's
leasehold interest hereunder.
ARTICLE xvn
TESTS
Tenant is hereby specifically permitted to conduct surveys, soil tests, radio
coverage tests, and any other test or investigation needed to determine if the physical
condition of the Leased Site is suitable for Tenant's uses hereunder. Tenant may bring
onto the Parent Tract or the Leased Site any equipment and machinery, including vans,
trucks and cranes, that may be reasonably necessary to conduct these tests, but Tenant
shall be responsible for any damage to the common elements or property located on the
Parent Tract or Leased Site, caused by any machinery brought thereon.
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ARTICLE XVIII
CONDITION OF THE BUILDING
18.1 Exclusive of the obligations and responsibilities of Tenant as set forth
elsewhere in this Agreement, Landlord shall be solely responsible, at its sole cost and
expense, for operating, maintaining, and repairing the Building, such that Tenant is able to
utilize the Building and the Lease Site for the purposes stated herein. Landlord shall
comply with all applicable federal, state and local laws, ordinances, codes, rules and
regulations pertaining to the Building, effective at the time of execution and as enacted
thereafter, the violation of which will in any way negatively affect the rights and use of
Tenant under this Agreement. Landlord shall be solely responsible for any fines, penalties,
levies and/or other additional expenses imposed as a result of non-compliance with the
requirements of such authorities.
Any default by Landlord in its obligation under this article shall provide Tenant
with the right to remedies at law or in equity, or to terminate the Agreement pursuant to
the notice provisions set forth above.
18.2 Landlord covenants and agrees that Tenant's Communications Equipment,
its installation, operation and maintenance will:
18.2.1 Not irreparably damage the Building structure and accessones .
thereto.
18.2.2 Comply with all applicable rules and regulations of the FCC and
the City and State which has jurisdiction with respect to the Communications
Facility.
15
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. . <".' 18.3 If the Building is damaged for any reason so as to render it substantially
,';1
unusable for Tenant's use, rent shall abate for such period while Landlord, at its expense,
restores the Building to its condition prior to such damage~ provided however, in the event
Landlord fails to repair the Leased Site within thirty (30) days from the date of such
damage, Tenant shall have the right to terminate this Agreement with no further
obligations hereunder. Landlord covenants and agrees that it shall repair such damage as
soon as possible after the occurrence of such damage. Throughout the Term, Landlord
shall insure the Building against all casualty in an amount equal to the replacement cost of
the Building.
ARTICLE XIX
BUILDING STUDY
Within thirty (30) days from the date of execution of this Agreement by Landlord,
Landlord agrees ,to furnish Tenant where reasonably obtainable, copies of all (a) Building
studies, including but not limited to any structural analyses of roof reports, that may have
been performed on the Building and the rooftop of the Building within the last two (2)
years and (b) architect and building/construction plans ("Plans") for the Building. In 'the
absence of such Plans or analysis, or if the most recent analysis is insufficient for Tenant'
needs, Landlord agrees to participate with Tenant in acquiring a new analysis on the
rooftop of the Building ("New Analysis"). Tenant shall be responsible for coordinating
the New Analysis and the cost for the New Analysis shall be paid by Tenant. In the event
it is determined by Tenant that Landlord's Building is not structurally appropriate for
Tenant's needs, Tenant may, at Tenant's option, terminate this Agreement by providing
written notice to Landlord.
16
169
ARTICLE XX
MISCELLANEOUS
20.1 This Agreement contains all agreements, promises and understandings
between Landlord and Tenant and no verbal or oral agreement, promises or
understandings relating to the Leased Site or the Parent Tract shall be binding upon either
Landlord or Tenant in any dispute, controversy or proceeding at law. Any addition,
variation or modification to this Agreement shall be void and ineffective unless made in
writing and signed by the parties. If any term or provision, or any portion thereof, of this
Agreement, or the application thereof to any person or. circumstances shall, to the extent,
be invalid or unenforceable, the remainder of this Agreement, or the application of such
term or provision to persons or circumstances, other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and provision of this
Agreement shall be valid and enforced to the fullest extent permitted by law.
20.2 This Agreement and the performance thereof shall be governed,
interpreted, constructed and regulated by the laws of the State of Florida.
20.3 This Agreement shall inure to the benefit of and be binding upon the heirs,
personal representatives, successors and assigns of the parties hereto. Time is of the
essence in this Agreement.
20.4 Both Landlord and Tenant agree that upon the request of either party, at
such party's sole expense, each party will execute and deliver a Memorandum of Lease,
which Memorandum of Lease may be recorded of record in the County where the Leased
Site is located.
17
170
, "20~5 -Whenever under this Agreement the consent or approval of either party is"
required or a determination must be made by either party, no such consent or approval
shall be unreasonably withheld or delayed, and all such determinations shall be made on a
reasonable basis and in a reasonable manner. In the event that a party hereunder does not
actually receive a written response from the other party hereunder to the request for an
approval within seven (7) days after the request for the approval is delivered to the other
party, the other party shall be conclusively deemed to have approved the request.
20.6 If any article, paragraph, section, provision, sentence, clause, or portion of
this Agreement is determined to be illegal, invalid or unenforceable, such determination
shall in no way affect the legality, validity or enforceability of any article, paragraph,
section, provision, sentence, clause or portion of this Agreement and any such affected
portion or provision shall be modified, amended, or deleted to the extent possible and
permissible to give the fullest effect to the purposes of the parties and of this Agreement,
and the parties hereby declare that they would have agreed to the remaining parts of this
Agreement if they had known that such provisions or portions thereof would be
determined to be illegal, invalid, or unenforceable.
20.7 Captions and headings are for convenience of reference only and in no way
shall be used to construe or modifY the provisions set forth in this Agreement.
20.8 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.
20.9 Florida law requires that the following notice be provided on at least one
document, form or application executed at the time of, or prior to execution of a rental
18
171
agreement of any building: Radon is a naturally 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.
20.10 Time is of the essence.
20.11 This Agreement and the obligations of the parties shall be governed by the
laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CITY OF MIAMI
By:
CITY CLERK
MAYOR
WITNESSES:
LANDLORD
By:
La Gorce Palace, Inc.
Title:
(CORPORATE SEAL)
." C . D''''''"'''' 'r,'
rUr\iVi h! rKU\ftu
LEGAL DEP~
By ,1M f4:fA tL
D::ta -!lI-j-jjC .
19
172
LANDLORD
Signed, sealed and delivered
in the presence of:
Witness
Printed Name
Witness
Printed Name
STATE OF FLORIDA
COUNTY OF DADE
By:
Printed Name
Title
Address
Executed on
day of
. 1996.
The foregoing instrument was acknowledged before me this
199 -' by
of
day of
, as
a
who IS
personally known to me or who has produced
as identification and who did (did not) take an oath.
My Commission Expires:
20
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EXHIBIT B
[DATE]
President
La Gorce Palace, Inc.
6301 Collins Ave.
Miami Beach, FL 33141
Dear President:
Based on information provided by Florida Power & Light, as per the attached letter, the
average rate of $ per kilowatt hour will be used for the period from October 1,
199_ to September 30, 199_. This rate has been calculated as follows:
Average rate = (Peak Rate x Peak Hours per Year) + (off-Peak Rate x Off-Peak Hours per Year)
Total Hours Per Year
Where:
Peak Rate =
Off-Peak Rate =
Peak Hours per Year =
Off-Peak Hours per Year =
Total Hours per Year =
$0.0000 per kilowatt hour
$0.0000 per kilowatt hour
3,134 hours
5,626 hours
8,760 hours
Sincerely,
City of Miami Beach
cc: City Attorney, Miami Beach
Property Manager, La Gorce Palace, Inc.
22
177