Loading...
2018-30272 ResolutionRESOLUTION NO. 2018 -30272 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING RESOLUTION NO. 2017 -30069 TO AUTHORIZE THE MAYOR AND CITY CLERK TO EXECUTE A NEW LEASE AGREEMENT, AS MODIFIED, BETWEEN THE CITY (TENANT) AND TOWER FORTY ONE ASSOCIATION, INC. (LANDLORD), FOR THE USE OF AN EQUIPMENT ROOM AND CERTAIN ROOFTOP AREAS, AT A BUILDING LOCATED AT 4101 PINE TREE DRIVE, IN CONNECTION WITH THE CONTINUED USE AND OPERATION OF PUBLIC SAFETY COMMUNICATIONS EQUIPMENT, FOR A TERM OF FIFTEEN (15) YEARS, COMMENCING, RETROACTIVELY, ON JANUARY 1, 2018, AND ENDING ON DECEMBER 31, 2032; AND FURTHER APPROVING, RETROACTIVELY, A MONTH TO MONTH EXTENSION OF THE CURRENT LEASE, FROM MARCH 8, 2015 THROUGH DECEMBER 31, 2017. WHEREAS, since 1987, the City, as Tenant, has entered into lease agreements with Tower 41 Associations, Inc. (Tower 41), as Landlord, for the use of an equipment room and certain rooftop areas for the placement and operations of certain public safety communications equipment; and WHEREAS, pursuant to said lease agreements, the City has been operating a communications facility, which includes an equipment room (the Equipment Room Space) with radio communications equipment, such as transmitter, receiver, and other accessories; areas on the rooftop (the Rooftop Spaces) containing equipment and improvements such as transmitters, antennas, UPS system, UPS batteries, battery chargers and microwaves dishes; and flexible coaxial transmission lines between the Rooftop Space and the Equipment Room Space; and WHEREAS, in 1996, the City entered into a twenty (20) year term agreement which expired on March 7, 2015 and has thereafter continued on a month to month basis; and WHEREAS, the radio equipment located at Tower 41 provides a vital microwave Zink to ensure continuous public safety radio communications between the northern and mid -beach areas with the primary and secondary dispatch centers; and WHEREAS, the relocation of the equipment from Tower 41 would require the City to apply to the Federal Communications Commission for new microwave frequencies and the certification that the frequencies would not interfere with the existing commercial licensees; and WHEREAS, at the October 18, 2017 City Commission meeting, the Mayor and City Commission adopted Resolution No. 2017 - 30069, approving a similar new lease agreement, containing the following essential terms: A. Term: Seven (7) years, commencing retroactively on January 1, 2017; B. Rent /Electricity: $20,000 annually, subject to three percent (3 %) annual increases; payment of electricity consumption through sub meter; C. Other: Tower 41 shall not lease other roof space for other purposes, if such purposes will interfere with the operations of the City's public radio communications; and WHEREAS, The City is in the process of updating the City's Communications Facility with new equipment, which will have a useful life of fifteen (15) years; and WHEREAS, subsequent to the October 18, 2018 City Commission meeting, the Administration and Tower 41 renegotiated the terms of the new lease agreement to accommodate the City's need for a longer lease commitment, to include: (1) increasing the term of the lease agreement from seven (7) years to fifteen (15) years; (2) modifying the commencement date of the lease term to reflect January 1, 2018, instead of January 1, 2017; and (3) providing that the initial annual rent, in the amount of $20,000, shall be subject to annual increases of 4.5 %, instead of 3 %; and WHEREAS, the Administration recommends that the Mayor and City Commission amend Resolution No. 2017 -30069 to approve the new lease agreement, as modified, in the form attached to the City Commission Memorandum accompanying this Resolution; and WHEREAS, the Administration also recommends formalizing the month to month extension of the existing lease, from the date of expiration, on March 7, 2015, through December 31, 2017. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby amend Resolution No. 2017 -30069 to authorize the Mayor and City Commission to execute a new lease agreement, as modified, between the City (Tenant) and Tower Forty One Association, Inc. (Landlord), for the use of an equipment room and certain rooftop areas, at a building located at 4101 Pine Tree Drive, in connection with the continued use and operation of public safety communications equipment, for a term of fifteen (15) years, commencing, retroactively, on January 1, 2018, and ending on December 31, 2032; and further approve, retroactively, a month to month extension of the current lease, from March 8, 2015 through December 31, 2017. PASSED AND ADOPTED this day of ATTEST: S� i ) l Rafael E. Granado, ZC /11( Clerk ;� cA °'` City � �. e �..� Darn INCUR: OBATE.O i'I2$,5 z z\s.s 2018. Iber, Mayor APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION eliNsissvisalOOXII Date City •" orney MAM BEACH Resolutions - C7 AC COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager DATE: April 11, 2018 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING RESOLUTION NO. 2017 -30069 TO AUTHORIZE THE MAYOR AND CITY CLERK TO EXECUTE A NEW LEASE AGREEMENT, AS MODIFIED, BETWEEN THE CITY (TENANT) AND TOWER FORTY ONE ASSOCIATION, INC. (LANDLORD), FOR THE USE OF AN EQUIPMENT ROOM AND CERTAIN ROOFTOP AREAS, AT A BUILDING LOCATED AT 4101 PINE TREE DRIVE, IN CONNECTION WITH THE CONTINUED USE AND OPERATION OF PUBLIC SAFETY COMMUNICATIONS EQUIPMENT, FOR A TERM OF FIFTEEN (15) YEARS, COMMENCING, RETROACTIVELY, ON JANUARY 1, 2018, AND ENDING ON DECEMBER 31, 2032; AND FURTHER APPROVING, RETROACTIVELY, A MONTH TO MONTH EXTENSION OF THE CURRENT LEASE, FROM MARCH 8, 2015 THROUGH DECEMBER 31, 2017, RECOMMENDATION Adopt the resolution. ANALYSIS BACKGROUND Since 1987, the City of Miami each had had an agreement with Tower 41 Association Inc., for the use of certain room and roof areas for the continued use, storage and operation of Public Safety Communications equipment. This agreement was renewed annually however changes in the State telecommunications laws have permitted an increased number cellular telephone services created a demand for premium roof space for cellular and radio microwave communications equipment. In 1996 acknowledgement of the importance of assuring continuous non - interference of the city's public safety communications system, to ensure the delivery of the services that provide for the health and safety to our citizens, visitors, and public safety employees, the city entered into a 20 year term agreement which expired on March 07, 2015 and has thereafter continued on a month to month basis. CURRENT STATUS The radio equipment located in Tower 41 provides a vital microwave link to ensure continuous public safety radio communications between the northern and mid -beach areas with the primary and secondary dispatch centers. 762 Relocation of the equipment would require the City to apply to the Federal communications Commission (FCC) for new microwave frequencies and the certification that the frequencies would not interfere with the existing commercial licensees. This agreement provides the City with the non - interference and guarantee required for the continuous operation of the public safety communications 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. At the October 18, 2017 City Commission meeting, the Mayor and City Commission adopted Resolution No. 2017 - 30069, approving a similar new lease agreement, containing the following essential terms: The major terms of the agreement with Tower 41 are: 1. EFFECTIVE DATE — Retroactive to annual renewal date (January, 2017) 2. TERM — Seven (7) years beginning on the Effective date. City has the exclusive right to cancel by giving 360 day notice. 3, RENT — Tower 41 - $20,000 annually. Annual increase of 3 % per year beginning the second year 4. ELECTRICITY — City has a sub meter and will reimburse costs for actual consumption 5. OTHER — Landlord shall not lease other roof space for other purposes, if such purposes will interfere with the operations of the City's public radio communications. The City is in the process of updating the City's Communications Facility with new equipment, which will have a useful life of fifteen (15) years. Subsequent to the October 18, 2018 City Commission meeting, the Administration and Tower 41 renegotiated the terms of the new lease agreement to accommodate the City's need for a longer lease commitment. The major terms of the renegotiated agreement with Tower 41 are: 1. EFFECTIVE DATE - Retroactive to annual renewal date (January 01, 2018) 2. TERM — Fifteen (15) years beginning on Effective date. City has exclusive right to cancel by giving 360 day notice. 3. RENT — Tower 41 - $20,000 annually. Annual increase of 4.5 % per year beginning the second year. 4. ELECTRICITY— City has a sub meter and will reimburse costs for actual consumption 5. OTHER — Landlord shall not lease other roof space for other purposes, if such purposes will interfere with the operations of the City's public radio communications. CONCLUSION The Administration recommends that the Mayor and City Commission approve the new lease agreement as modified and further approve retroactively a month to month extension of the existing lease through December 31, 2017. Legislative Tracking Fire 763 ATTACHMENTS: Description o Lease Agreement Resolution 764 LEASE AGREEMENT BETWEEN CITY OF MIAMI BEACH, FLORIDA AND TOWER FORTY ONE ASSOCIATION, INC. This agreement (hereinafter designated as "Agreement ") made this day , 2018 between Tower Forty One Association, Inc. (LANLORD) and City of Miami Beach, Florida, 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: 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 Miami - 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 mo unting of various antennas, associated equipment, and microwave dishes, hereinafter referred to as the "Rooftop Space ", together with that certain space consisting of 13.6 square feet of rentable building space located on the 18th Floor of the Building ( "Building Space "), and one (1) room, hereinafter referred to as the "Equipment Room Space ", located above the 19th floor, which consists of 359 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, Building 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 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 -way 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 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 1 765 install, maintain, remove, or repair TENANT'S Communications Equipment will be covered by the liability policy described in Paragraph 8 of this Agreement. TENANT is responsible for the cost of such activities. If LANDLORD proposes to lease roof space and /or a 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 fully licensed Public Safety Radio Systems and their supporting infrastructure, 800/700 MHz, UHF, as well as any future Public Safety LTE band 14 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 TENANT'S Communications 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 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 for payment, directly to FP &L, of the electricity utilized by the TENANT. 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 Tenant's installation and usage of the reserved site. 2. TERM: The term of this Agreement shall be for fifteen (15) years beginning retroactively on the 1st of January 2018 and ending on the 31St day of December 2032 (The "Term "). 3. RENT: A. During the first (1st) year of this Agreement, TENANT shall pay the annual rental of Twenty Thousand and 00/100 Dollars ($20,000.00), in equal monthly installments of One Thousand Six Hundred and Sixty -Six and 67/100 Dollars ($1,666.67), plus applicable sales tax, to be paid on or before the first (1st) day of the month, in advance, to LANDLORD. 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 four and one -half percent (4.5 %), at the commencement of each such year. 4. USE: A. LANDLORD hereby grants permission to TENANT to install and operate the following and associated equipment ( "Communications Equipment ") on or in the Leased Site for the purposes of constructing, maintaining, and operating a Police and Fire Public Communications Facility and uses incidental thereto, as follows: 2 766 1. Transmitters, antennas, UPS System, UPS Batteries and Battery Chargers, microwaves dish(es), and similar devices to be in, on or: over the Rooftop Space, now or any time during the Term of this Agreement; 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; 3. Radio communications, equipment consisting of transmitter, receiver, accessories, and other property to be installed in the Equipment Room Space; and 4. 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 temporarily 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 Communications Equipment 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 ". B. 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. 5. RIGHT TO TERMINATE BY TENANT: 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. 3 767 B. TERMINATION DUE TO LACK OF FUNDING: If sufficient funds, to make contracted payments under this Agreement, are not appropriated and approved through the City's yearly budgetary process, this Agreement shall terminate and Tenant shall not be obligated to make contracted payments beyond the then - current fiscal year for which funds have been appropriated. Upon such an event, Tenant, through the City Manager, shall, no later than the end of the fiscal year for which contracted payments have been appropriated, give Landlord written notice of termination. Following termination pursuant to this section, Tenant shall be discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this Agreement. C. TERMINATION FOR CONVENIENCE: 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. 6. LIABILITY AND INDEMNITY: Subject to and limited by Paragraphs 8 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 TENANTS 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. 7. 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). 8. 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. 9. 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 tilt this Agreement shall in no way be affected. The Agreement will be binding and in full force and 4 768 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, if any communications equipment hereafter affixed to the Building or the Parent Tract interferes with the TENANT'S Communication Facility, the LANDLORD shall cause such interfering communications equipment to be removed on an emergency basis, 10. COVENANT OF QUIET 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. 11. 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 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 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, the 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 - disturbances instrument in a form acceptable to TENANT. 12. 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 the requested document(s) is received or TENANT may terminate this Agreement. 13. 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 date of commencement of this Agreement or thereafter, except as a result of any act or omission of the TENANT, 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 because 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 5 769 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, Hazards Substances shall be required to be removed from the Leased Site only if required by the proper governmental authorities. 14. ASSIGNMENT AND SUBLETTING: With the exception of TENANT'S principal, other governmental 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 the terms, covenants, provisions, and conditions of this Agreement. Should this Agreement be assigned to any entity other than the Tenant's principal, other governmental 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 the Tenant by the assignee, the Landlord shall be free to renegotiate the rent payment due it. 15. 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 16. 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 debtor's lien on such improvements, equipment, towers, or trade fixtures. 6 770 17. 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 in either of said events the Term hereby granted shall cease from the time when possessions thereof is taken by public authorities, and rental shall be accounted for as between TENANT and LANDLORD as of the 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 Lease Site, Nothing is 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. 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 solo 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 because 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 provisions set forth above. B. LANDLORD covenants and agrees that TENANT'S Communications Equipment, its installation, operation, and maintenance will; (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 authority with respect to the Communications Facility. C. If the Building is damaged for any reason 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 casualties in an amount equal to the replacement cost of the Building. 19. MISCELLANEOUS: A. This Agreement contains all agreements, promises and understandings between the LANDLORD and TENANT and no verbal or oral agreement, promise 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 7 771 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 fully 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, if a party hereunder does not actually receive a written response from the other party hereunder to the request for an approval within thirty (30) 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. 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. Paragraphs 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. original, and such counterpart shall constitute but the same Agreement. 20. 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. 8 772 21. GOVERNING LAW: This Lease and the obligations of the parties shall be governed by the laws of the State of Florida, IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their seals to be affixed; all as of the day any year first above written, TENANT CITY OF MIAMI BEACH, FLORIDA RAFAEL E. GRANADO, CITY CLERK DAN GELBER, MAYOR Print Name WITNESSES: Print Name Print Name 9 773 DATE: LANDLORD TOWER FORTY ONE ASSOCIATION, INC. BY: Print Name DATE: