2016-29677 Reso RESOLUTION NO. 2016-29677
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, FOLLOWING A DULY ADVERTISED PUBLIC
HEARING, AND WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING
REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF
THE CITY; AND APPROVING, IN SUBSTANTIAL FORM, THE LEASE
AGREEMENT ATTACHED TO THIS RESOLUTION, BETWEEN THE CITY AND
THE MIAMI BEACH REDEVELOPMENT AGENCY (COLLECTIVELY,
LANDLORD) AND COMCAST OF COLORADO / FLORIDA / MICHIGAN / NEW
MEXICO / PENNSYLVANIA / WASHINGTON, LLC (TENANT), FOR THE USE OF
APPROXIMATELY 375 SQUARE FEET OF CITY-OWNED PROPERTY
(PREMISES), LOCATED ON THE FIRST FLOOR AT 1661 PENNSYLVANIA
AVENUE (PENN GARAGE), FOR A PERIOD OF NINE (9) YEARS AND THREE
HUNDRED SIXTY FOUR (364) DAYS, RETROACTIVELY COMMENCING
DECEMBER 1, 2016 AND ENDING NOVEMBER 29, 2026; SAID LEASE BEING
SUBJECT TO FINAL NEGOTIATION BETWEEN THE ADMINISTRATION AND
TENANT, AND SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY
ATTORNEY'S OFFICE; AND FURTHER AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE THE FINAL NEGOTIATED LEASE.
WHEREAS, the Pennsylvania Garage (Penn Garage) is located at 1661 Pennsylvania Avenue
and contains approximately 7,655 square feet of ground floor retail space and 560 municipal
parking spaces; and
WHEREAS, in an effort to provide Miami Beach residents additional telephone, television and
internet service provider options, the City is working with Comcast of
Colorado/Florida/Michigan/New Mexico/Pennsylvania/Washington, LLC (Tenant) to implement a
new Citywide fiber and infrastructure buildout; and
WHEREAS, as part of this infrastructure buildout, Tenant requires a hub location to support
existing and future network requirements; and
WHEREAS, Tenant has requested to lease approximately 225 square feet of garage space on the
ground floor, which is currently enclosed by a chain link fence, and was previously used to store
garage flood panels; as well as two (2) existing concrete pads, containing approximately 150
square feet, on the first level garage ramp, to install a backup generator and HVAC equipment;
and
WHEREAS, upon further discussions, the Administration negotiated a lease with Tenant, for
an initial term of nine (9) years and three hundred sixty four (364) days, retroactively commencing
December 1, 2016 and ending November 29, 2026; and
WHEREAS, the Administration submitted the agreed upon terms and conditions to the
Finance and Citywide Projects Commission Committee (FCWPC) at its October 28, 2016 meeting,
and the Administration recommended approving a lease agreement with Tenant, containing the
following essential terms:
Premises: Storage area located on the ground floor at 1661 Pennsylvania Avenue
Size: Approximately 375 square feet
Term: Nine (9) years and three hundred sixty four (364) days, retroactively
commencing December 1, 2016 and ending November 29, 2026.
Rental Rate: $18,000 annually for initial year, with three percent (3%) annual increases
Rent Increases: Three percent (3%) annual increases
Construction
Allowance: Tenant shall accept the Premises in "as-is" condition. Tenant shall be
responsible for all costs associated with modifying the Premises to meet its
requirements.
WHEREAS, the Administration recommends that the City Commission approve, in substantial
form, the lease agreement attached as Exhibit "A" hereto, subject to final negotiation between the
Administration and Tenant, and subject to review and form approval by the City Attorney's Office.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission, following a
duly advertised public hearing, hereby waive, by 5/7ths vote, the competitive bidding requirement,
finding such waiver to be in the best interest of the City; and approve, in substantial form, the lease
agreement attached to this Resolution, between the City and the Miami Beach Redevelopment
Agency (collectively, Landlord) and Comcast of Colorado/Florida/Michigan/New
Mexico/Pennsylvania/Washington, LLC (Tenant), for the use of approximately 375 square feet of
City-owned property (Premises), located on the first floor at 1661 Pennsylvania Avenue (Penn
Garage), for a period of nine (9) years and three hundred sixty four (364) days, retroactively
commencing December 1, 2016 and ending November 29, 2026; said lease being subject to final
negotiation between the Administration and Tenant, and subject to review and form approval by
the City Attorney's Office; and further authorize the Mayor and City Clerk to execute the final
negotiated lease.
PASSED and ADOPTED this fiy day of &Cent 6P•✓ 2016.
ATTEST:
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FORM & LANGUAGE
T:AGENDA\2016\December\TCED\Comcast\Comcast RESO(11-28-16).docx & F XE UTION
City Attorney p�pte
CABLE EQUIPMENT ROOM LEASE
THIS CABLE EQUIPMENT ROOM LEASE (this "Lease"), made this
day of September, 2016, by and between the City of Miami Beach, a municipal
corporation of the State of Florida having its offices at 1700 Convention Center Drive,
Miami Beach, FL 33139 and the Miami Beach Redevelopment Agency, a Florida public
body corporate and politic, organized and existing pursuant to Chapter 163, Part Ill,
Florida Statutes (hereinafter collectively referred to as "Landlord") and COMCAST of
Colorado/Florida/Michigan/New Mexico/Pennsylvania/Washington, LLC, a
Colorado company, authorized to do business in Florida, with its offices at 1701 John F.
Kennedy Blvd., Philadelphia, PA 19103 (hereinafter referred to as "Tenant").
WITNESSETH:
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WHEREAS, Landlord=is the owner in fee simple of a:xcertainl:parcel of land=(the
"Land"), as more particularly described in ExhibitA hereto, including the building::and all
other' improvements located thereon (the Building ), -having an address of
ter
Pennsylvania Garage 4,:'S.1661 Pennsylvania;Aven'ue, Miami-Beach, County of.v_Miami-
4r}y
Dade, State of Florida 33139;
S.•:}�.t
> :: WHEREA=.'S Tenant_:r;i•:y.��pk.".p�.rc}iov id es comm-u"n icatioa`Xp.-»y s-`-.' services,.r-iz n:^+.ao.;s c..tlus dsn'a K:i.
ng, but not
limited
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to, cable television service pursuant to one ormore franchise agreements; . A
kc•,y K-: .',a.};�,»;i:..yrr.... }.o.,..h-:s..
r :2;Afi{.. ..}.rr.�°-r.�::;a:�..m--.
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WHEREAS, Tenant desires to lee a portionof theBuilding from Landlord for
the purpose �of const sting, maintaing, and operating a communication signal
procesing.and transmission facilitytogether with uses incidental thereto, in connection
with its communications business ("Tenant's Uses"); and
WHEREAS, Landlord and Tenant desire to enter into this Lease upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and intending to be legally bound hereby, the parties agree as follows:
The above recitals are true and correct and are incorporated as part of this
Lease.
1. Premises. Landlord does hereby lease to Tenant that certain portion of
the Building consisting of approximately 375 square feet and known as Pennsylvania
Garage Head End (the "Premises"), as depicted and more particularly described on
Exhibit A hereto. Subject to the terms and conditions contained in this Lease, Tenant
shall have full and unfettered access to the Premises for operation, repair and
maintenance on a 24 hour a day, 365 days a year basis. Tenant may also use the
Building's common areas for the purposes for which they were designed in common
EXHIBIT
1
with others to whom such rights have previously been, or may hereafter be, granted.
This Lease shall not be interpreted to grant Tenant_any parking privileges in connection
with the parking garage facility on the Land.
2. Use. The Premises shall be used and occupied for purpose of
constructing, maintaining, and operating a cable and broadband communications signal
processing and transmission facility together with uses incidental thereto in accordance
with applicable laws, and for no other purpose (Unapproved Use). Licensee's use of
the Premises for an Unapproved Use shall be considered a material default under this
Lease, and should Tenant fail to cure said default within thirty (30) days written notice
from the Landlord, the Landlord shall be entitled to terminate this Lease. Additionally,
notwithstanding any other terms of this Lese, the City shall be entitled to seek
immediate relief, whether at law or equity, to restrain such Unapproved Use
3. Term. The term of this Lease (the "Term") shall commence on December 1,
2016 (the "Commencement Date"), and continue for a period of Nine (9) Years and three
hundred and Sixty-Four (364) days expiring on November 29, 2026.
4. Renewals. Tenant shall not have the right to extend the term of this
Lease.
5. Rent.
A. Tenant shall pay to Landlord an initial annual rent of Eighteen Thousand
Dollars ($18,000) ("Rent") payable in advanced monthly installments of One Thousand
Five Hundred Dollars ($1,500) on the first day of each month during the Term of this
Lease, plus any applicable sales tax.
B. Commencing on the first day of each annual anniversary day of the
Commencement Date, the annual Rent shall be increased by 3% of the annual Rent due
for the preceding year.
6. Cable License. Subject to Tenant securing the prior written approval of
Landlord, in its proprietary capacity, and securing all applicable governmental
approvals, Landlord hereby grants to Tenant, during the Term of this Lease, a license to
install, access, maintain, replace, repair, and remove, on a 24 hour a day, 365 days a
year basis, Tenant's cable (including coaxial and fiber) and communications wiring and
related equipment (collectively, the "Cable") in, over, across and through the Land and
Building to the Premises. Notwithstanding any provision to the contrary in this Lease,
Landlord acknowledges and agrees that Tenant may directly install and maintain the
Cable or, subject to the prior written approval of the City Manager, in the City Manager's
reasonable discretion, subcontract the installation, maintenance, or removal of the
Cable to a qualified subcontractor. All work for the installation and maintenance of the
Cable shall be performed at Tenant's sole cost and expense.
2
7. Utilities/Tenant Improvements/Taxes.
A. During the terms of this Lease, and subject to Tenant securing the prior
written approval of Landlord, in its proprietary capacity, and all required governmental
approvals, Tenant shall bring electric, telephone, and other utility services (utility
services) to the Premises, as may be required in connection with the Tenant's Use, all
of which utility services are to be connected, installed and maintained at Tenant's sole
cost and expense. Landlord hereby agrees to cooperate with Tenant in connection with
granting Tenant any easements which may be necessary to enable the utility
companies to provide such utility service. The location of said easements shall be
subject to the written approval of Landlord, in its proprietary capacity, and any required
governmental approvals.
B. Landlord hereby grants to Tenant during the Term of this Lease, the right
to install, access and maintain an emergency generator and related above-ground fuel
storage tank (collectively, the "Generator Equipment") in order to provide a source of
emergency power for Tenant's operations at the Premises. Such installation shall
constitute a Tenant Improvement (as defined in Section 9), such that the terms and
conditions of Section 9 shall apply thereto. Tenant shall be responsible for compliance
with all laws applicable to the installation, maintenance, use and removal of the
Generator Equipment. Tenant will immediately report to Landlord any spill or release of
fuel or hazardous substances and any citations or notices of violation and will provide
Landlord with copies thereof. Such notification will not relieve Tenant from its
obligations to notify governmental agencies. Any cleanup or remediation of any spill or
release with respect to the Generator Equipment required by any governmental agency
will be completed by Tenant in accordance with all applicable laws. Landlord may make
periodic inspections to ensure regulatory compliance and the proper operation,
maintenance and repair of the Generator Equipment. Tenant shall give to Landlord
notice of any notices which Tenant receives from third parties that any of the Generator
Equipment is or may be in violation of any law. Tenant shall pay all taxes of any kind or
nature whatsoever levied upon the Generator Equipment/Tenant Improvements or
Tenant's Use, and all licensing fees, franchise taxes and other charges, expenses and
other costs of any nature whatsoever relating to the construction, ownership,
maintenance and operation of the Generator Equipment/Tenant Improvements. Within
ten (10) days after expiration or termination of this Lease, Tenant, at Tenant's sole cost
and expense, shall remove any Generator Equipment installed pursuant to this Lease.
8. Maintenance. Tenant shall be responsible, at its sole expense, for the
interior maintenance of the Premises. Landlord agrees to maintain in good order and
repair and make all necessary repairs and replacements to the exterior walls, windows
and doors, roof, floor slabs, structural elements, the heating, plumbing, ventilating, air-
conditioning, electrical and mechanical systems of the Building, all glass, and all
common areas, except for those repairs and replacements required because of the
negligent acts or omissions of Tenant or Tenant's agents, officers, contractors, or
3
employees. Landlord shall keep the sidewalks, driveways, and parking areas lighted
and free of snow, ice and debris.
9. Alterations. Tenant shall not make any alterations or
improvements (Tenant Improvements) to the Premises except in accordance with plans
and specifications first approved by Landlord.. All Tenant Improvements shall be
deemed part of the Premises. At the end of the Term or earlier termination of this
Lease, the Tenant Improvements shall not be removed unless Landlord directs Tenant
to remove said Tenant Improvement. No Tenant Improvements shall be undertaken by
Tenant until it shall have first secured the City Manager's written approval and aid for all
required permits and authorizations of all municipal departments and governmental
subdivisions having jurisdiction. Any approved Tenant Improvements shall be made at
Tenant's sole expense, in a good and workmanlike manner, and in compliance with all
applicable permits, authorizations, Building and zoning laws and with all other
requirements of all governmental authorities having jurisdiction. Tenant shall furnish a
performance bond not less than 100% of the construction cost of the Tenant
Improvements. Tenant shall furnish construction cost estimates prepared and certified
by Tenant's engineer prior to Landlord's approval of the plans.
10. Surrender. Upon expiration or earlier termination of this Lease, Tenant
shall surrender the Premises free and clear of all Tenant Improvements which the City
Manager, in the City Manager's sole discretion, directs Tenant to remove (Surrendered
Tenant Improvements). Tenant shall remove, at its sole cost and expense, all
Surrendered Tenant Improvements within thirty (30) days following termination or
expiration of the Term and restore all or any part of the Premises to the same condition
as originally received by Tenant (ordinary wear and tear excepted).
Tenant's obligation to observe or perform this covenant shall survive the expiration or
other termination of this Lease. Tenant's failure to remove all Surrendered Tenant
Improvements and to restore all or any part of the Premises to its original condition
within the thirty (30) day period shall constitute trespass by the Tenant, and may be
prosecuted as such. In addition, Tenant shall pay to Landlord One Thousand
($1,000.00) Dollars per day as liquidated damages for such trespass and holding over.
11. Compliance. Tenant shall at all times comply with the requirements of all
constituted public authorities and with the terms of any state or federal statute or local
ordinance or regulation applicable to the Premises for Tenant's use thereof.
12. Assignment/Subcontract. Tenant shall not assign this Lease nor sublet
all or any part of the Premises without the prior written consent of the Landlord, which
consent, if provided at all, shall be in Landlord's sole discretion. A direct or indirect
change in the majority interest of Tenant (51% or more) of equity ownership, partnership
interest, or control of Tenant or transfer upon partnership or corporate dissolution of
Tenant shall constitute an assignment hereunder. Notwithstanding anything to the
contrary in this Lease, Tenant may subcontract the maintenance and repair obligations
4
in connection with Tenant's Use, without the written consent of the Landlord so long as
Tenant retains exclusive control over Tenant's Uses. .
13. Indemnification. In consideration of a separate and specific consideration
of Ten ($10.00) Dollars and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Tenant shall indemnify, hold harmless
and defend the Landlord, its officials, directors, members, employees, contractors,
agents, and servants from and against any and all actions (whether at law or inequity),
claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees and
costs, for personal, economic or bodily injury, wrongful death, loss of or damage to the
Property, which may arise or be alleged to have arisen from: (1) wholly or in part from
the negligent acts, errors, omissions or other misconduct of Tenant, its officers, director,
members, employees, agents, contractors, subcontractors, or any other person or entity
acting under Tenant's control or supervision; (2) Tenant's breach of the terms of this
Lease or its representations and warranties herein; (3) Tenant's Uses under this Lease;
or (4) the use of the Premises by Tenant. To that extent, Tenant shall pay all such
claims and losses and shall pay all such costs and judgments which may issue from any
lawsuit arising from such claims and losses, and shall pay all costs and attorneys' fees
expended by the Landlord in the defense of such claims and losses, including appeals.
14. Insurance and Taxes. (Subject to review/approval by Risk Manager)
A. During the term of this Lease and any extension hereof, Tenant shall
obtain and maintain commercial general liability insurance with a minimum single limit
for personal injury of One Million Dollars ($1,000,000.00) for any occurrence and Two
Hundred Fifty Thousand Dollars ($250,000.00) for property damage for any one
occurrence. Such insurance shall name Landlord as an additional insured.
B. Property Insurance against all risks of loss to any tenant
improvements or betterments, including tenant's personal property, at full
replacement cost with no coinsurance penalty provision.
C. In addition to, and not in lieu of the insurance required to be
maintained by Tenant, Landlord shall obtain and keep in effect throughout the
term of this Lease and any extension hereof, an all risk insurance policy or
policies in the name of Landlord, insuring against loss or damage to the Building
in an amount equal to the replacement cost thereof.
D. All insurance policies carried by either party covering the Premises
shall expressly permit that party to waive any right on the part of the insurer to
make any claim against the other party. Landlord and Tenant each hereby waive
all claims and rights against the other and their respective partners, agents,
officers and employees, for any death or injury to persons or damage or
destruction of property or business which shall occur on or about the Premises
and shall result from any of the perils insured under any policies of insurance
maintained by Landlord or Tenant, regardless of cause, including the negligence
and intentional wrongdoing of either party and their respective partners, agents,
officers and employees.
5
E. Landlord shall continue paying all real property taxes assessed
upon the Land and the Building (together, the "Property"). Tenant shall pay any
increase in real estate taxes assessed upon the Property solely as a result of
Tenant's improvements and/or Tenant Uses in the Premises and all personal
property taxes assessed upon Tenant's improvements in the Premise.
15. Inspection. Landlord or its agents or employees authorized by the
Landlord shall have the right upon at least 24 hours advance notice (except in
emergencies) to inspect the Premises and to enter the Premises at all reasonable times
not interfering with the operation by the Tenant of its business upon the Premises for
the purpose of inspecting the Premises. In addition thereto, Landlord may, at
reasonable times, enter upon the Premises to show the same to prospective buyers of
the entire Building. Furthermore, Landlord may, at reasonable times, enter upon the
Premises to show Premises to prospective Tenants within a period of three (3) months
prior to the expiration of the basic term or any extension thereof.
16. Default. The following events shall be considered "Events of Default":
A. The failure of the Tenant to pay any installment of Rent or any other sum
payable by Tenant hereunder within ten (10) days after the same shall become due and
payable. Payments of rent received by the Landlord beyond ten (10) days when it is
due shall be subject to a five percent (5%) late payment charge calculated against the
rent and additional rent paid late. Additionally, any payment due under this Lease which
is not received within five (5) days from receipt of written notice, shall approve interest
at the highest rate permitted by law.
B. The failure to perform, violation or breach by the Tenant of any of the
terms or conditions hereof, which failure, violation or breach shall continue unremedied
by the Tenant for a period of thirty (30) days after written notice thereof shall have been
given to the Tenant by the Landlord, or for such additional period as may be necessary
to remedy such failure, violation or breach with due diligence.
C. The insolvency of Tenant as evidenced by an assignment by Tenant for
the benefit of creditors, a petition in bankruptcy being filed by the Tenant, the
adjudication of Tenant as a bankrupt or the filing against Tenant of a petition for the
appointment of a receiver, which petition is not dismissed within sixty (60) days.
18. Effect of An Event of Default. In the event of any default hereunder by
Tenant, then without prejudice to any other rights which it has pursuant to this Lease or
at law or in equity, Landlord shall have the following rights and remedies, which are
cumulative and not alternative:
(A) Landlord may cancel this Lease by notice to Tenant and retake
possession of the Premises for Landlord's account, or may terminate Tenant's right to
possession of the Premises without terminating this Lease. In either event, Tenant shall
then quit and surrender the Premises to Landlord. If Landlord terminates Tenant's right
6
to possession of the Premises without terminating this Lease, Tenant's liability under all
of the provisions of this Lease shall continue notwithstanding any expiration and
surrender, or any re-entry, repossession, or disposition hereunder.
(B) If Landlord terminates Tenant's right to possession of the Premises
without terminating this Lease under subsection (A) above, Tenant shall remain liable
(in addition to accrued liabilities) to the extent legally permissible for all rent and all of
the charges Tenant would have been required to pay until the date this Lease would
have expired had such cancellation not occurred. Tenant's liability for rent shall continue
notwithstanding re-entry or repossession of the Premises by Landlord. In addition to the
foregoing, Tenant shall pay to Landlord such sums as the court which has jurisdiction
thereover may adjudge as reasonable attorneys' fees with respect to any successful
lawsuit or action instituted by Landlord to enforce the provisions of this Lease.
(C) Landlord may relet all or any part of the Premises for all or any part
of the unexpired portion of the Term of this Lease or for any longer period, and may
accept any rent then attainable; grant any concessions of rent, and agree to paint or
make any special repairs, alterations, and decorations for any new tenant as it may
deem advisable in its sole and absolute discretion. Landlord shall be under no obligation
to relet or to attempt to relet the Premises.
(D) If Landlord terminates Tenant's right to possession of the Premises
without terminating this Lease under subsection (A) above, and Landlord so elects, the
rent hereunder shall be accelerated and Tenant shall pay Landlord damages in the
amount of any and all sums which would have been due for the remainder of the Term.
Prior to or following payment in full by Tenant of such discounted sum promptly upon
demand, Landlord shall use good faith efforts to relet the Premises. If Landlord receives
consideration as a result of a reletting of the Premises relating to the same time period
for which Tenant has paid accelerated rent, such consideration actually received by
Landlord, less any and all of Landlord 's cost of repairs, alterations, additions,
redecorating, and other expenses in connection with such reletting of the Premises,
shall be a credit against such discounted sum, and such discounted sum shall be
reduced if not yet paid by Tenant as called for herein, or if Tenant has paid such
discounted sum, such credited amount shall be repaid to Tenant by Landlord (provided
said credit shall not exceed the accelerated amount).
(E) Landlord may remedy or attempt to remedy any default of Tenant
under this Lease for the account of Tenant and to enter upon the Premises for such
purposes. No notice of Landlord's intention to perform such covenants need be given
Tenant unless expressly required by this Lease. Landlord shall not be liable to Tenant
for any loss or damage caused by the reasonable acts of Landlord in remedying or
attempting to remedy such default and Tenant shall pay to Landlord all expenses
incurred by Landlord in connection with remedying or attempting to remedy such default.
Any expenses incurred by Landlord shall accrue interest from the date of payment by
Landlord until repaid by Tenant at the highest rate permitted by law.
7
9.3 Costs. If Landlord or Tenant has to enforce the terms of this Lease, the
prevailing party shall be entitled to collect all costs incurred by the prevailing party,
including attorneys' fees and costs at all tribunal levels. In addition, upon any default by
Tenant, Tenant shall be also liable to Landlord for the expenses to which Landlord may
be put in re-entering the Premises; repossessing the Premises; painting, altering, or
dividing the Premises; combining the Premises with an adjacent space for any new
tenant; putting the Premises in proper repair; protecting and preserving the Premises by
placing watchmen and caretakers therein; reletting the Premises (including attorneys'
fees and disbursements, marshall's fees, and brokerage fees, in so doing); and any
other expenses reasonably incurred by Landlord.
9.4 Additional Remedies; Waiver. The rights and remedies of Landlord set
forth herein shall be in addition to any other right and remedy now and hereinafter
provided by law. All rights and remedies shall be cumulative and non-exclusive of each
other. No delay or omission by Landlord in exercising a right or remedy shall exhaust or
impair the same or constitute a waiver of, or acquiescence to, a default.
19. Casualty and Eminent Domain.
A. If any part of the Building or the Premises are damaged by fire or other
casualty so that substantial reconstruction of either will be required, Landlord or Tenant
may terminate this Lease on the date set forth in a notice given to the other party within
30 days after the damage occurs, such termination date to be not later than 30 days
after such 30 days. If this Lease is so terminated, Rent shall be abated as of the date of
such damage. If this Lease does not so terminate, then within 45 days after such
damage, Landlord shall proceed with diligence to restore the Building and the Premises
to substantially the same condition in which they were immediately prior to the casualty.
Tenant may terminate this Lease if restoration has not been substantially completed
within 90 days after such damage occurred. Rent shall be abated fairly according to the
nature and extent of the damages until restoration of the Premises is substantially
complete.
B. If, by exercise of the right of eminent domain (a "Taking"), all or a substantial
portion of the Premises are taken, this Lease shall end upon the earlier of the vesting of
title in the condemning authority or the taking of possession by the condemning authority
(in either case the "Ending Date"). If, after a Taking, a substantial portion of the Premises
remains so that, in Tenant's reasonable estimation, the Premises may be used for the
purposes permitted under this Lease: (i) this Lease will end on the Ending Date as to the
part of the Premises so taken; (ii) prepaid Rent will be appropriately allocated to the part of
the Premises which is taken and prorated to the Ending Date; (iii) beginning on the day
after the Ending Date, Rent for so much of the Premises as remains will be reduced in the
proportion of the floor area remaining after the Taking to the floor area before the Taking;
(iv) at its cost, Landlord will restore so much of the exterior of the Premises as remains to a
sound architectural unit substantially suitable for the purposes for which it was used
immediately prior to the Taking; and (v) at its cost, Tenant shall restore all of the Tenant
Improvements (excluding the exterior enclosure of the Leased Premises). All awards
8
from any Taking shall be allocated to Landlord. Unless prohibited by applicable law,
Tenant may prosecute its own claim by separate proceedings against the condemning
authority for damages legally due to it (such as the loss of fixtures which Tenant was
entitled to remove and moving expenses).
20. Signage. Tenant shall have the right (but not the obligation) to display a
sign(s) on the Premises subject to the approval of the Landlord and any governmental
approvals required by law.
21. Notices. All notices or demands required or permitted to be given or
served pursuant to this Lease shall be deemed to have been given or served only if in
writing forwarded by (a) hand delivery, (b) certified mail, postage prepaid, or (c)
overnight courier, and addressed as follows:
To Landlord at:
City of Miami Beach
Attn:
1700 Convention Center Drive,
Miami Beach, FL 33139
To Tenant at:
Comcast of Colorado/Florida/Michigan/New
Mexico/Pennsylvania/Washington, LLC
Attn: Vice President of Finance
1100 Northpoint Parkway, Suite 100
West Palm Beach, FL 33407
With a copy to:
Comcast Cable Communications, LLC
One Comcast Center
1701 John F. Kennedy Boulevard
Philadelphia, PA 19103-2838
Attention : General Counsel
Notices shall be effective on (a) the date of hand delivery, (b) one (1) business
day after deposit with a national courier service, or (c) three (3) business days after
deposit in the U.S. Mail. Inability to deliver due to change of address for which no
notice was given or refusal to accept delivery shall be deemed delivery hereunder.
Each party shall have the right to designate by notice in writing any other address to
which such party's notice is to be sent.
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22. Quiet Enjoyment. Landlord covenants that Landlord has the right and
authority to enter into this Lease, and that Tenant may peaceably and quietly have, hold
and enjoy the Premises provided that Tenant performs and fulfills all the terms,
covenants and conditions of this Lease.
23. Termination by Tenant. This Lease may be terminated by Tenant
without any penalty or further liability, upon one hundred twenty (120) days written
notice to Landlord upon the occurrence of any of the following: (a) the Premises is or
becomes unacceptable under the Tenant's design or engineering specifications for
Tenant's facilities or communications systems; or (b) Tenant determines that the
Premises are not appropriate for Tenant's operations for economic reasons; or (c)
Tenant's franchise to operate its cable system is revoked or suspended.
24. Landlord's right to Terminate.
A. City's Right to Terminate for Failure to Operate. Notwithstanding
anything contained herein to the contrary, Landlord may terminate this Lease, without
any liability to the Landlord, upon written notice to Tenant if: (1) Tenant has not secured
a building permit to build the Tenant Improvements within (_) days
from the Effective Date; (2) the Tenant Improvements have not been constructed and
Tenant's Uses are not operational within (_ ) months from the
Effective Date; or (3) Tenant ceases to operate the Tenant Uses continuously for a
period of thirty (30) days or more.
B. City's Right to Terminate for Convenience. Landlord may also, through
its City Manager, and for its convenience and without cause, terminate the Lease at any
time during the Term by providing Tenant with written notice, a one (1) year in
advance. In such case, Tenant shall be entitled to an early termination fee equal to the
total upfront investment which Tenant made in connection with the construction and
installation of the Tenant Improvements at the Premises, less the net earned income
which Tenant has received pursuant to the privileges granted by this Lease and in
connection with Tenant's Uses, from the Effective Date through the effective date of
termination. Net earned income shall be determined by taking the total gross revenues
and deducting all expenses permitted under acceptable accounting principles, excluding
any depreciation, amortization, depletion, dividends and/or distribution expenses.
25. Florida Public Records Law.
(A) Tenant shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time. Records made or received in
connection with this Agreement are public records under Florida law, as defined in
Section 119.011(12), Florida Statutes.
(B) Pursuant to Section 119.0701 of the Florida Statutes, if the Tenant meets the
definition of "Contractor" as defined in Section 119.0701(1)(a), the Contractor
shall:
10
(1) Keep and maintain public records required by the City to perform
the Tenant Uses;
(2) Upon request from the City's custodian of public records, provide
the City with a copy of the requested records or allow the records to
be inspected or copied within a reasonable time at a cost that does
not exceed the cost provided in Chapter 119, Florida Statutes or as
otherwise provided by law;
(3) Ensure that public records that are exempt or confidential and
exempt from public records disclosure requirements are not
disclosed, except as authorized by law, for the duration of the
contract term and following completion of the Agreement if the
Contractor does not transfer the records to the City;
(4) Upon completion of the Agreement, transfer, at no cost to the City,
all public records in possession of the Contractor or keep and
maintain public records required by the City to perform the Tenant
Uses. If the Contractor transfers all public records to the City upon
completion of the Agreement, the Contractor shall destroy any
duplicate public records that are exempt or confidential and exempt
from public records disclosure requirements. If the Contractor
keeps and maintains public records upon completion of the
Agreement, the Contractor shall meet all applicable requirements
for retaining public records. All records stored electronically must
be provided to the City, upon request from the City's custodian of
public records, in a format that is compatible with the information
technology systems of the City.
(C) REQUEST FOR RECORDS; NONCOMPLIANCE.—
(1) A request to inspect or copy public records relating to the City's contract
must be made directly to the City. If the City does not possess the
requested records, the City shall immediately notify the Contractor of the
request, and the Contractor must provide the records to the City or allow
the records to be inspected or copied within a reasonable time.
(2) Contractor's failure to comply with the City's request for records shall
constitute a breach of this Agreement, and the City, at its sole discretion,
may: (1) unilaterally terminate the Agreement; (2) avail itself of the
remedies set forth under the Agreement; and/or (3) avail itself of any
available remedies at law or in equity.
(3) A Contractor who fails to provide the public records to the City within a
reasonable time may be subject to penalties under s. 119.10.
(D) CIVIL ACTION.—
(1) If a civil action is filed against a Contractor to compel production of public
records relating to the City's contract, the court shall assess and award
against the Contractor the reasonable costs of enforcement, including
reasonable attorney fees, if:
a. The court determines that the Contractor unlawfully refused to comply
11
with the public records request within a reasonable time; and
b. At least 8 business days before filing the action, the plaintiff provided
written notice of the public records request, including a statement that
the Contractor has not complied with the request, to the City and to
the Contractor.
(2) A notice complies with subparagraph (1)(b) if it is sent to the City's
custodian of public records and to the Contractor at the Contractor's
address listed on its contract with the City or to the Contractor's registered
agent. Such notices must be sent by common carrier delivery service or
by registered, Global Express Guaranteed, or certified mail, with postage
or shipping paid by the sender and with evidence of delivery, which may
be in an electronic format.
(3) A Contractor who complies with a public records request within 8 business
days after the notice is sent is not liable for the reasonable costs of
enforcement.
(E) IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION
OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY
TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO(UMIAMIBEACHFL.GOV
PHONE: 305-673-7411
26. Performance Bond Or Alternate Security. Tenant shall, within thirty
(30) days from Effective Date, furnish to the City Manager or Structure Manager a
Performance Bond in the penal sum stated below for the payment of which Tenant shall
bind itself for the faithful performance of the terms and conditions of this Lease. A
Performance Bond, in the amount of ($ )
Dollars, shall be provided by the Licensee in faithful observance of this Agreement. A
cash deposit, irrevocable letter of credit, or certificate of deposit may also suffice, as
determined by the City Manager or Structure Manager, in his sole and reasonable
discretion. The form of the Performance Bond or alternate security shall be approved by
the City's Chief Financial Officer. In the event that a Certificate of Deposit is approved, it
shall be a ($ ) Dollar one-year Certificate of
Deposit in favor of the City, which shall be automatically renewed, the original of which
shall be held by the City's Chief Financial Officer. Tenant shall be so required to maintain
said Performance Bond or alternate security in full force and effect throughout the Term
of this Agreement. Tenant shall have an affirmative duty to notify the City Manager or
Structure Manager, in writing, in the event said Performance Bond or alternate security
lapses or otherwise expires. All interest that accrues in connection with any financial
12
instrument or sum of money referenced above shall be the property of Licensee, except
in an event of default, in which case the City shall be entitled to all interest that accrues
after the date of default.
27. No Discrimination. Tenant hereby agrees to comply with City of Miami
Beach Human Rights Ordinance, as codified in Chapter 62 of the City Code, as may
be amended from time to time, prohibiting discrimination in employment, housing,
public accommodations, or public services, on the basis of actual or perceived race,
color, national origin, religion, sex, intersexuality, sexual orientation, gender identity,
familial and marital status, age, ancestry, height, weight, domestic partner status, labor
organization membership, familial situation, political affiliation, or disability.
28. Hazardous Materials. Tenant's right to use the Premises is strictly on an
"As Is" basis with all faults. Tenant shall not cause or permit the escape, disposal or
release of any Hazardous Materials on or from the Property in any manner prohibited by
Law. Tenant shall indemnify and hold the City harmless from any loss, damage, cost,
or expense of the City, including, without limitation, reasonable attorney's fees, incurred
as a result of, arising from, or connected with the placement by Licensee of any
"hazardous substance" or "petroleum products" on, under, in or upon the Property
(including, without limitation, the Licensed Structure), as those terms are defined by
applicable Federal and State Statute, or any environmental rules and environmental
regulations promulgated thereunder; provided, however, that Licensee shall have no
liability in the event of the willful misconduct or gross negligence of the City, its agents,
servants or employees. The provisions of this subsection shall survive the termination or
earlier expiration of this Agreement.
29. Miscellaneous.
A. The topic headings preceding the text of the various sections of this Lease
are inserted solely for convenience of the parties, and shall not constitute a part of this
Lease, nor shall they affect its meaning, construction or effect.
B. This Lease shall be binding upon Landlord and Tenant, their respective
successors and assigns.
C. Landlord shall not be in default unless Tenant gives Landlord a notice of
the default and Landlord fails to cure the default within 30 days. After such time, Tenant
shall have the right, but not the obligation, to cure such default, and Landlord shall
reimburse Tenant on demand for all costs incurred by Tenant in performing such
obligation, as well as (b) all other remedies at law and/or equity.
D. In the event that Landlord or Tenant is delayed in performing any act
because of acts of God, strikes, lockouts, labor troubles, inability to procure materials,
failure of power, riots and insurrection, acts of the public enemy, wars, earthquakes,
hurricanes and other natural disasters, fires, explosions, any act, failure to act or default
of the other party to this Lease or any other reason beyond the control of any party to
13
this Lease, then such performance shall be excused for the period of the delay and the
period for the performance of any such act shall be extended for an equivalent period.
E. Tenant and Landlord each warrant that it has not dealt with any broker in
connection with this Lease. Tenant and Landlord each agree to indemnify the other for
all loss, cost, damage, or expense incurred by the other for any claim by any other
broker regarding this Lease. All fees payable to Brokers on account of this Lease shall
be paid by Landlord.
D. Governing Law/Waiver of Jury Trial. This Lease shall be governed by
and interpreted according to the laws of the state of Florida. This Lease shall be
enforceable in Miami-Dade County, Florida, and if legal action is necessary by either
party with respect to the enforcement of any and all the terms or conditions herein,
exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida.
LANDLORD AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE
THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT
LANDLORD AND TENANT MAY HEREIN AFTER INSTITUTE AGAINST EACH
OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO
THIS LEASE.
IN WITNESS WHEREOF, the parties have executed this Lease Agreement the
day and year first above written.
LANDLORD:
City of Miami Beach
By:
Name:
Title:
TENANT:
COMCAST of Colorado/Florida/Michigan/
New Mexico/ Pennsylvania/Washington,
LLC.
By:
Name:
Title:
14
EXHIBIT A
Legal Description/Plan of the Premises
15
Resolutions - R7 B
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: December 14, 2016
1:35 p.m. Public Hearing
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, FOLLOWING A DULY ADVERTISED PUBLIC HEARING, AND
WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT,
FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY; AND
APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A
NEW LEASE AGREEMENT, SUBSTANTIALLY IN THE FORM ATTACHED TO THIS
RESOLUTION AS EXHIBIT "A", BETWEEN THE CITY OF MIAMI BEACH AND THE
MIAMI BEACH REDEVELOPMENT AGENCY (COLLECTIVELY, LANDLORD) AND
COMCAST OF COLORADO / FLORIDA / MICHIGAN / NEW MEXICO /
PENNSYLVANIA / WASHINGTON, LLC (TENANT), FOR THE USE OF
APPROXIMATELY 375 SQUARE FEET OF CITY-OWNED PROPERTY(PREMISES),
LOCATED ON THE FIRST FLOOR AT 1661 PENNSYLVANIA AVENUE (PENN
GARAGE), MIAMI BEACH, FLORIDA, FOR A PERIOD OF NINE (9) YEARS AND
THREE HUNDRED SIXTY FOUR (364) DAYS, RETROACTIVELY COMMENCING
DECEMBER 1, 2016 AND ENDING NOVEMBER 30, 2026.
RECOMMENDATION
Adopt the Resolution.
BACKGROUND
The Pennsylvania Garage (Penn Garage) is located at 1661 Pennsylvania Avenue and contains
approximately 7,655 square feet of ground floor retail space and 560 municipal parking spaces. The
retail space was vacated by Oolite restaurant last year and is currently vacant. While the convention
center is being renovated, the City has agreed to provide temporary office space to the Miami Beach
Chamber of Commerce for its Visitor Center and the balance of the retail space will likely be occupied
by City departments.
ANALYSIS
In an effort to provide Miami Beach residents additional telephone, television and intemet service
provider options, the City is working with Comcast of Colorado/Florida/Michigan/New
Mexico/Pennsylvania/Washington, LLC (Tenant) to implement a new Citywide fiber and
infrastructure buildout. This new buildout will provide Miami Beach residents with Comcast's most
advanced services.
As part of this infrastructure buildout, Tenant requires a hub location to support existing and future
network requirements. Tenant is bringing its fiber from the mainland to Miami Beach via the
Page 674 of 1191
Venetian Causeway. The City and Tenant identified the Penn Garage as a suitable location due to
its proximity to the Venetian Causeway/17th Street corridor.
Tenant has requested to lease approximately 225 square feet of garage space on the ground floor,
as depicted on Exhibit"B" (Floor Plan), attached hereto. This area is currently enclosed by a chain
link fence, as depicted on Exhibit "B-1" (Enclosure), attached hereto, and was previously used to
store garage flood panels. The flood panels are currently stored in and interior storage room.
Additionally, Tenant has requested to utilize two (2) existing concrete pads, containing
approximately 150 square feet, on the first level garage ramp, as depicted in Exhibit "C"
(Equipment Pads)attached hereto, to install a backup generator and HVAC equipment.
The proposed basic terms and conditions of the new leases are as follows:
Premises : Storage area located on the ground floor at 1661
Pennsylvania Avenue
Size: Approximately 375 square feet
Term: Nine (9) years and three hundred sixty four (364) days,
retroactively commencing December 1, 2016 and ending November 30,
2026.
Rental Rate: $18,000 annually, with three percent(3%)annual increases
Rent Increases: Three percent (3%)annual increases
Construction
Allowance: Tenant shall accept the Premises in "as-is" condition.
Tenant shall be responsible for all costs associated with modifying the
Premises to meet its requirements.
FINANCE & CITYWIDE PROJECTS COMMITTEE
At the October 28, 2016 Finance and Citywide Projects Committee ("FCWPC") meeting, the
Administration presented the terms and conditions set forth above. The FCWPC considered this
matter and recommended approving a new lease with Comcast._
CONCLUSION
The Administration recommends that the Mayor and City Commission adopt the Resolution in favor
of accepting the recommendation of the FCWPC.
Legislative Tracking
Tourism, Culture and Economic Development
ATTACHMENTS:
Description
❑ Exhibit A- DRAFT Lease Agreement
Page 675 of 1191
❑ Exhibit B - Floor Plan
❑ Exhibit B-1 - Enclosure
❑ Exhibit C - Equipment Pads
❑ RESO (11-28-16)
Page 676 of 1191