96-22056 RESO
RESOLUTION NO, 96-22056
A RESOLUTION OF THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE A LEASE AGREEMENT WITH
TOWER 41 ASSOCIATION, INC., FOR THE USE OF
CERTAIN ROOM AND ROOF AREAS FOR THE
PLACEMENT AND OPERATION OF PUBLIC SAFETY
COMMUNICA TIONS EQUIPMENT.
WHEREAS, since 1987 the City has entered into one-year lease agreements with Tower 41
Association, Inc., for use of certain room and roof areas for the placement and operations of certain
public safety communications equipment; and
WHEREAS, since then, such agreements were automatically renewed each year; and
WHEREAS, changes in the State telecommunications laws have permitted an increased
number of cellular telephone service providers; and
WHEREAS, such actions have resulted in the increased demand for premium roof areas for
locating necessary microwave antennae; and
WHEREAS, in acknowledgment of the importance of assuring continuous non-interference
of the City's public safety communications system to the health and safety of our citizens, visitors,
and public safety employees, the City is desirous of entering into long term agreements for existing
room and roof areas; and
WHEREAS, the President and members of the Board of Directors of Tower 41 Association
Inc" are desirous of continuing their contribution and commitment to the health and safety of our
citizens, visitors and public safety employees and, to that end, have negotiated the attached 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 Tower 41 Association, Inc., for use of
certain room and roof areas for the placement and operation of certain public safety communications
equipment.
PASSED and ADOPTED, this 17th day of
July
,1996.
Attest:
~ 0 WA~ ftAA.~
City Clerk
\~t~-~
VICE-Mayor
luHM APPROVi:.u
PFLme
LEGAL DEPT.
ByAlf ~~
r.."te .2l.J 1/1 L.. .
CITY OF
MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
COMMISSION MEMORANDUM NO. -4 -z. ~ - 9<.0
TO:
Mayor Seymour Gelber and
Members of the City Commission
DATE: July 17, 1996
FROM: Jose Garcia-Pedrosa
City Manager
SUBJECT: A RESOLUTION A THORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LEASE
AGREEMENT WITH TOWER 41 ASSOCIATION, INC., (TOWER 41) FOR THE USE OF
CERTAIN ROOM AND ROOF AREAS FOR THE PLACEMENT AND OPERATION OF
PUBLIC SAFETY COMMUNICATIONS EQUIPMENT.
RECOM1v1ENDA TION
Adopt the Resolution
BACKGROUND - TOWER 41
Since 1987, the City of Miami Beach has had a one-year agreement with the Tower 41 Association,
Inc., (Tower 41) for the placement and operation of certain public safety radio equipment in the
equipment room and roof area of the condominium building; this agreement was automatically
renewed each year. There are no lease payments associated with this agreement; however, the
agreement was amended to provide for fixed monthly reimbursements of$365.00 for electricity,
Early in 1995, Tower 41 representatives advised the City that they had been approached by a number
of commercial cellular telephone service providers, to lease roof space for the placement of
microwave. In recognition of the commercial value of roof area, Tower 41 requested that their
agreement with the City be renegotiated. Since then, the City has been in negotiations with
representatives of Tower 41.
BACKGROUND- P ARKVIEW POINT
On March 6, 1987, the City of Miami Beach entered into a similar agreement with the Parkview Point
Condominium Association, Inc. (Parkview). Similarly, the City agreed to monthly reimbursements
of$265.00 for electricity.
Agenda Item
C-'l~
Date
Tower 41 Association, Inc.
July 17, 1996
Page - 2-
In 1992, Parkview gave notice of termination to the City. The concerns relative to microwave
radiation were addressed by the City, resulting in Parkview's Board of Directors rescinding their
earlier decision. At that time, the estimated cost to relocate the radio equipment was $500,000, if
a suitable site could be found.
In 1995, Parkview, again, gave notice of termination to the City. The 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. Since then, the City
has been involved in contract negotiations with the Parkview for a long-term contract.
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.
CONTRACT TERMS
During 1995, negotiations between the City and representatives of both Tower 41 and Parkview
Point were conducted both individually and concurrently. At the beginning of negotiations, all parties
agreed that the continued non-interference to the public safety communications system was of utmost
importance to the welfare and safety of the citizens, visitor and public safety employees. This
acknowledgment would result in the retroactive implementation of the terms of any final agreement.
Subsequent negotiations with Parkview were terminated.
The major terms of the agreement with Tower 41 are:
1. EFFECTIVE DATE - Retroactive to annual renewal date (March 1995).
2. TERM - Twenty (20) years beginning on the Effective Date. City has the exclusive right to
cancel by giving 360 days notice.
3. RENT - Tower 41 - $13,500 annually (Total of 587 sq.ft.). Annual CPI increase, not to
exceed 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.
Tower 41 Association, Inc.
July 17, 1996
Page - 3-
ANALYSIS
The radio equipment located in Tower 41 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.
Relocation of the equipment would require the City to apply to the Federal Communications
Commission (FCC) for new microwave frequencies and the certification that such frequencies would
not interfere with other existing commercial licensees.
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. The lease payment
consideration acknowledges the value of the roof area to commercial cellular telephone operators and
prevents the City from possibly having to relocate its equipment.
ACKNOWLEDGMENT
The Administration wishes to acknowledge and thank Murray Dinerstein, President; Stanley Esko,
Property Manager; and the members of the Board of Directors of Tower 41 Association, Inc., for
their hard work and dedication to negotiating this Lease Agreement that will ensure the non-
ill ;terference required for the continuous operation of the City's public safety communication system.
~v PFL:me
LEASE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH
AND
TOWER FORTY-ONE ASSOCIATION, INC.
This Agreement (herein
this 17th day of July
~, (LANDLORD) and the
Corporation of the State of
after designated as "Agreement") made
,199~ between Tower 41 Association,
City of Miami Beach. a Municipal
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:
1. PREMISES: 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 4101 Pine Tree Drive, Miami Beach, FL 33140,
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 UQ square feet of rentable building space
located on the 18th Floor of the Building, and one (1) room,
hereinafter referred to as the "Equipment Room Space", located
above the 18th floor, which consists of .15...l square feet. The
Rooftop Space shall be those certain positions on the roof of the
building upon which TENANT'S equipment is mounted, which shall be
at sufficient height, now or 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 roof will be mutually agreed upon by
LANDLORD and TENANT, based upon TENANT'S radio propagation tests
and other activities of a similar nature to determine TENANT'S
need. 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.
LANDLORD grants TENANT, at TENANT'S sole expense, the right to
survey the Leased Site and to substitute the survey legal
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descriptions of the Rooftop Space and the Equipment Room Space.
LANDLORD agrees that, during the Term of this Agreement,
TENANT shall have a non-exclusive easement for access to the Leased
Site on a 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 TENANTIS Communications Equipment shall also be
allowed access to said property 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 by the liability policy
described in Paragraph 7 of this Agreement. TENANT is responsible
for the cost of such activities.
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 interferes 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 his 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 TENANT1S 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.
All other vendors, if there are any, must operate all of their
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equipment under the guidelines of the Federal Communications ,!,
Commission (FCC) and be in compliance with all the applicable rules
and regulations, including obtaining an FCC license prior to
operating said equipment.
TENANT shall be responsible to the LANDLORD for payment of
electricity utilized by the TENANT. Payment of electricity
utilized during the previous month shall be made to the LANDLORD
with the current monthly rent payment. Calculation of the payment
shall be based on the actual kilowatt hours used times an average
rate per kilowatt hour and any applicable demand charges.
An electrical sub-meter installed by the TENANT will determine
the actual usage. The rate per kilowatt hour will be determined
annually as of October 1st., using Florida Power & Light (FP&L)
current billing rates and billing structure for the LANDLORD IS
building. The TENANT will notify the LANDLORD in writing, in the
format prescribed in Exhibit "B", of the average rate per kilowatt
based on FP&L's information.
TENANT agrees to provide for the installation and maintenance
of air conditioning equipment of the approximate size of 14" by 3611
by 72". Said air conditioning equipment shall be installed from
the ceiling of the laundry room adjacent to the Equipment Room
Space and shall be installed from the ceiling of the laundry room
adjacent to the Equipment Room Space and shall be used to condition
the air of both the laundry room and TENANT'S Equipment Room Space.
Tenant shall also be responsible for payments of any other
utilities and other expenses whatsoever which are incurred by
either Tenant or Landlord relative to Tenant1s installation and
usage of the reserved site.
2. TERM: The term of this Agreement shall be for twenty (20)
years beginning on the 8th of March, 1995.
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.
3 . RENT:
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A. During the first (1st) year of this Agreement, TENANT
shall pay an annual rental payment in the amount of Thirteen
Thousand Five Hundred and 00/100 Dollars ($13,500.00), in
equal monthly installments, plus applicable sales tax, to be
paid on the first (1st) day of the month, in advance, to
LANDLORD or its written designee.
B. 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 the Consumer Price Index (CPI), but in
no event to exceed 3 percent, at the commencement of each such
year.
4. IlSL 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:
A. Transmitters, antennas, UPS System, UPS Batteries and
Battery Chargers, microwaves dish(es), and similar devices to
be located in, on or over the Rooftop Space, now or any time
during the Term of this Agreement.
B. 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.
C. Radio
transmitter,
installed in
Communications, equipment consisting of
receiver, accessories and other property to be
the Equipment Room Space.
D. At TENANT'S option, TENANT shall have the right to locate
an emergency generator at a place mutually acceptable with
LANDLORD on the Parent Tract. Further, LANDLORD agrees that,
in an emergency, TENANT shall be permitted to run temporary
lines between the Rooftop Space and the Equipment Room Space
necessary to provide temporary emergency electrical power.
For the purposes of this Agreement, all of TENANT'S equipment,
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building, panels, generator, cables, wires, antennas, microwave
dishes and accessories shall hereinafter collectively be referred
to as the "Communications Facility" and any improvements made by
the TENANT to the Leased Site pursuant to the terms of this
Agreement are hereinafter referred to as the "Improvements".
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.
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
that the Communication 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, to a reasonable condition under the
circumstances, except normal wear and tear, and except for
enhancements made by the TENANT to the Building pursuant to the
terms of this Agreement.
TENANT shall have the right to terminate this Agreement at any
time upon the occurrence of any of the following events:
A. 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.
B. 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 the
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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(A) or 4(B) above; or (ii) in the event
that the Approvals described in Subsection 4(A) 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 the LANDLORD with notice to
the contrary prior to the expiration of the original
Cancellation Date; following the Execution Date, the 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(A),
above, including, without limitation, any required site
plan/zoning approvals for the Leased Site. Upon the request
of the 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.
5. LIABILITY AND INDEMNITY: Subj ect to and limited by
Paragraphs 7 and 24, TENANT agrees to indemnify and to 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 I 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
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agents, employees, contractors, or other tenants of LANDLORD'
occurring in or about the Leased Site.
:, ,'t"'
6. DEFAULTS AND REMEDIES: Notwithstanding anything in this
Agreement to the contrary, TENANT shall not be in default under
this Agreement until:
A. 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
B. 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) .
7. INSURANCE: The TENANT is self-insured for all potential
liability resulting from the TENANT'S negligence in accordance with
and subject to the limitations of Section 768.28, Florida Statutes.
The 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.
8. SALE OF THE PARENT TRACT: Should the 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 the 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, the LANDLORD
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shall cause such interfering communications equipment to be removed .
on an emergency basis.
9. COVENANT OF OUIET ENJOYMENT: LANDLORD covenants that the
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 interest
to the Parent Tract, including the Leased Site, and has full
authority to enter into and execute this Agreement.
10. SUBORDINATION AND NON-DISTURBANCE: At LANDLORD r 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 of a foreclosure of LANDLORD'S interest, and TENANT'S right
to remain in occupancy of the Leased Site as long as TENANT is not
in def aul t 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,
the LANDLORD, not later than thirty (30) days after this Agreement
is fully executed, and as a condition precedent to TENANT r S
obI igation to pay rent hereunder, shall obtain and furnish to
TENANT a non-disturbance instrument in a form acceptable to TENANT.
11. 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 provide the non-disturbance instrument(s) as noted in Paragraph
11 of this Agreement, TENANT may withhold and accrue the monthly
rental until such time as the requested document(s) is received or
TENANT may terminate this Agreement.
12. HAZARDOUS SUBSTANCES: In the event Hazardous Substances,
as said term is hereinafter defined, are discovered on, in or under
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the Leased Site as of the date of commencement of this Agreement or
thereafter, except as a resul t of any act or omission of the
TENfu~T, the 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 the TENANT, the
LANDLORD shall indemnify and hold the 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 the TENANT, the 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, Hazadards Substances shall be required to be removed from
the Leased Site only if required by the proper governmental
authorities.
13. 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
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assignment of this Agreement results in remuneration to the Tenant
by the assignee, the Landlord shall be free to renegotiate the rent
payment due it.
14. NOTICES: All 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) :
TENANT: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With copy to: City Attorney
LANDLORD: Tower 41 Association, Inc.
4101 Pine Tree Drive
Miami Beach, FL 33140
With copy to: Property Manager
IS. 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 the TENANT created hereby,
together with all of the 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 always that not such mortgage, conveyance or
encumbrance, nor any foreclosure thereof, nor any purchase
thereunder, shall impair or abridge the rights of the LANDLORD. In
the event of any such mortgage conveyance or assignment, landlord's
lien shall be superior and shall not be subordinate to any such
debtors lien on such improvements, equipment, towers, or trade
fixtures.
16. 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
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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 right to
an award of compensation of any eminent domain proceeding for the
Improvements or TENANT'S leasehold interest hereunder.
17. TESTS: TENANT is hereby specifically permitted to
conduct surveys, soil tests, radio coverage tests, and any other
test or investigation needed, in TENANT'S determination to or from
the Leased Site and the Parent Tract 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.
18. CONDITION OF THE BUILDING:
A. 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 Leased 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 section
shall provide Tenant with the right to remedies at law or in
equity, or to terminate the Agreement pursuant to the notice
T41A
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provisions set forth above.
B. LANDLORD covenants
Communications Equipment,
maintenance will:
and agrees that TENANT'S
its installation, operation and
(1) Not irreparably damage the Building structure and
accessories thereto.
(2) Comply will all applicable rules and regulations of
the Federal Communications Commission and the City and
State which has jurisdiction with respect to the
Communications Facility.
C. If the Building is damaged for any reason so as to render
it substantially 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 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.
19. BUILDING STUDY: Within thirty (30) days from the date of
execution of this Agreement by LANDLORD, LANDLORD agrees to furnish
TENANT with true copies of all (a) Building studies, including but
not limited to 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 for the Building. In the absence of
such Plans or analysis, or if the most recent analysis is
insufficient for TENANT'S needs, LANDLORD agrees to participate
wi th 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.
T41A
-12-
T41A
20. MISCELLANEOUS:
A. This Agreement contains all agreements, promises and
understandings between the 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
the 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 be enforced
to the fullest extent permitted by law.
B. This Agreement and the performance thereof shall be
governed, interpreted, constructed and regulated by the laws
of the State of Florida.
C. 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.
D. 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 or this Agreement may be recorded of record in the
County where the Leased Site is located.
E. 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
-13-
other party shall be conclusively deemed to have approved th~
request.
F. If any 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
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.
G. Paragraph 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.
H. 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.
21. RADON GAS: 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
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.
22. TIME: Time is of the essence.
23. GOVERNING LAW: This Lease and the obligations of the
parties shall be governed by the laws of the State of Florida
T41A
-14-
IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed and their seals to be affixed; all as of the day and
year first above written.
CITY OF MIAMI BEACH
--Sb} r~C~
CITY CLERK
BY:\)~~(~
VICE-MAYOR
W~ESSES:
LANDLORD
,
-'-
Inc.
'(
/
'(CORPORATE SEAL)
,""'-..... I""'" ~. ..j r 1"-" r"", "''''1
Ut'L-'J (', "
1-r'HL ,..., .r"T
Url U I .,
Oy ( ,
Date -:;-8/ry~"" .
T41A
-15-
TENANT
sealed and delivered
resence of:
By:u_l\~~
David T. Pearlson
Printed Name
Lkui,lk~
Wltness
~hf~ (Y)L1jZ0Y
Printed ame
Vice-Mayor
Title
City of Miami Beach
Address
1700 Convention Center Drive
Miami Beach, Florida 33139
Executed
on
,1996.
day of
STATE OF FLORIDA
COUNTY OF DADE
The foregoing instrument was acknowledged before me this
of ~ ' 1996 , by ()/f-tf','!> T. i>~Qr-lst>..J
as V ,'((' - N4yur of CJr-y of I--{ "~i aeQ<:.h
a , who is personally known to me or
who has produced as identification and
who did (did not) take an oath.
.sf
L day
My Commission Expires:
rhlllQ u~
NOTARY PUBLIC
ii/I/o"! 73e QUC-htlJ./ P
Printed Name '
f~~)Fi~(~+r. ~T:!(~~'-7:1r -'''1
ULL.:.\I..r !":fv. :'., :: ~
N01lt\,R"~' :')U~~L~~:' ::~,;"~/,~j'.::.; c.' t L,"i~:L):\~
C(>!\~I\f!SS'()~~ ~\C' CC.',~7~<..O l
MY COMMl::l:,'OU EXP, FE':';.! V'98 I
__ .w.....t.... _._.___._._....
-16-
LL
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LANDLORD
Signed, sealed and delivered
in the presence of:
~ V(), / /'
( .... '/ / /-.. . (//.~ ~'
~ 0~>?t/lh- ~ CJk--
Witness /
MORTON H. KOPEL
Printed Name
/~:?{ '~~1'~
/Witness
SAM ZELINGER
Printed Name
PRESIDENT
Title
4101 PineTree Dr. #1706
Address
Miami Beach, F1 33140
Executed on
JANUAR~ ,1996.
25
day of
STATE OF FLORIDA
COUNTY OF DADE
oregoing instrument was acknowledged before me this;':>6~day
. <-< ,197&, by m.<<A~~ . - ,
. . / of-r~--<...; - (V/,n-e___ ~t2/Ut-r~ Vr~v ' ,
, who is personally known to me or
as identification and
as
a
who has produced
who did (did not) take an oath.
My Commission Expires:
;Z .
~-
. J~ /3eM'~
~ NOTAR.Y PUBLIC
, ~ -I
e A ,;r:A_ 1)" I -z.--
Printed Name
CIAL NorAR
PEARL BAITZ
NOTARY PUBLIC STATE?: FLORIDA
COMMISSION NO. CC4791R5
MY COMMI_SSI(lliE1St,'~t/E..~, ,,'9 :
T . - .
EXHIBIT B
-17-
[DATE]
President
Tower 41 Association
4101 pine Tree Drive
Miami Beach, FL 33141
Dear President:
Based on
attached
be used
30,
information provided by Florida Power & Light, as per the
letter, the average rate of $ per kilowatt hour will
for the period from October 1, to September
. This rate has been calculated as follows:
Average rate = (Peak Rate x Peak Hours oer Year) + (Off-Peak Rate x Off-Peak Hours oer 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, Tower 41