Lease Agreement with Tower Forty One Association, Inc. •
Zeck - 3Q212
•
ebne LEASE AGREEMENT
9 'ffi/bi BETWEEN
CITY OF MIAMI BEACH,FLORIDA
AND
TOWER FORTY ONE ASSOCIATION,INC. ^^
This agreement (hereinafter designated as "Agreement") made this day 2M, A-pt \, 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 mounting of various antennas,
associated equipment, and microwave dishes, hereinafter referred to os 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
TENANTS 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 TENANTS 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
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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 31"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:
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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.
C. 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.
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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 TENANTS
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
that this Agreement shall in no way be affected. The Agreement will be binding and in full force and
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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 TENANTS 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 TENANTS 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
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•
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 TENANTS 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.
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17. CONDEMNATION: If the whole of the Leased Site or such portion thereof as will, in TENANTS
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 he 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
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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.
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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 da year first above written.
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(L) CITY OF MIAMI BEACH, FLORIDA
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WITNESSES: LANDLORD
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