Amendment NO.1 LEASE AGREEMENT between CROWN CASTLE FIBER LLC and MB RDA (tj - q - 2020
AMENDMENT NO. 1 TO ROOFTOP LEASE AGREEMENT
BETWEEN
MIAMI BEACH REDEVELOPMENT AGENCY (RDA)
AND
CROWN CASTLE FIBER LLC
This Amendment No.1 ("Amendment") to the Rooftop Lease Agreement, dated
September 9, 2015 ("Agreement"), by and between the Miami Beach Redevelopment
Agency (RDA), a Florida redevelopment agency created under chapter 163, Florida
Statutes, having its principal place of business at 1700 Convention Center Drive, Miami
Beach, Florida 33139 (City), and Crown Castle Fiber LLC, a New York limited liability
company, as successor by merger to Crown Castle NG East LLC, and authorized to do
business in the State of Florida, having its place of business at 2000 Corporate Drive,
Canonsburg PA 15317 ("Tenant"), is entered into this day of
,t30-to,t30-tor ertg.qa. 2020 (Effective Date):
RECITALS
WHEREAS, on September 9, 2015, the City and Crown Castle NG East LLC
(Original Tenant), executed a Rooftop Lease Agreement granting to Original Tenant the
right to construct, operate and maintain certain telecommunications facilities, as described
more fully in the Rooftop Lease Agreement,on property owned by the City located at 1550
Collins Avenue, Miami Beach Florida ("Property"); and
WHEREAS, on or about December 31, 2018, Original Tenant merged with and into
Crown Castle Fiber LLC, a New York limited liability company, with Crown Castle Fiber
LLC being the surviving entity; and
WHEREAS, on April 22, 2020, the Chairperson and Members of the Miami Beach
Redevelopment Agency adopted Resolution No.649-2020, approving, in substantial form,
Amendment No. 1 to the Agreement, said amendment, in material part, (1) approving the
installation of additional fiber on the Property, to be connected to Crown's Facilities on the
Leased Premises; (2) identifying the location of the new improvements on the Property;
(3) increasing the rent payment under the Agreement by $425 per month, to a total of
$4,927.04 per month; (4)acknowledging the transfer of tenant's interest in the Agreement
to Crown Castle; and (5) updating other miscellaneous provisions of the Agreement.
NOW THEREFORE, in consideration of the mutual promises and conditions
contained herein, and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the RDA and Tenant hereby agree to amend the Agreement as
follows:
1. ABOVE RECITALS.
The above recitals are true and correct and are incorporated as part of this
Amendment.
2. MODIFICATIONS.
The Agreement is hereby amended as follows:
(a) As a result of a merger process, by operation of law, the interest of Crown
Castle NG East LLC in this Agreement has merged into Crown Castle Fiber
LLC. For purposes of interpreting the Agreement, all references to Crown
Castle NG East LLC or Tenant shall hereinafter be deemed to refer to Crown
Castle Fiber LLC.
(b) The Rent under the Agreement shall be increased by$425.00 per month, plus
applicable sales tax.
(c) Section 2. Definitions — the definition of "Leased Premises" is hereby
deleted in its entirety and replaced with the following:
"Leased Premises" means that portion of the rooftop of the Building located on
the Property with the address of 1550 Collins Ave, Miami Beach, FL, consisting
of approximately 3,630 square feet of space, as described in Exhibit B. The
Leased Premises shall include the non-exclusive access to, from and through
the Building connecting Tenant's Facilities from the public right of way(s)to the
rooftop via new or existing conduits to be installed by Tenant, including the
non-exclusive use of underground spaces on the Property, and the Building's
existing telephone distribution systems, boxes and facilities, as well as vertical
and horizontal risers and conduits in and outside the Building,for the purposes
of installing electrical power for Equipment and connecting the Equipment to
the fiber optic cables at the Building's demarcation point, as more particularly
described in Exhibit B-1, attached hereto and incorporated herein by
reference(collectively, the "Licensed Area").
(d) The last sentence in Section 6 of the Agreement is hereby deleted in its
entirety, as follows:
o .
(e) Section 10 of the Agreement is hereby modified as follows:
10. Assignment, Sublease, and Licensing. Tenant shall not sublease, assign
or license all or a portion of its interest in this Agreement without prior notice and
approval by Lessor's Executive Director,which approval shall not be unreasonably
delayed or denied. Tenant shall provide all relevant financial information relating
to the proposed sub-lessee, licensee,or assignee and all insurance in compliance
with this Agreement. Upon approval of an assignment of this entire Agreement by
the Lessor, Tenant shall be relieved from any further liability or obligation under
this Agreement. Notwithstanding the foregoing, the transfer of the rights and
obligations of Tenant to a parent, subsidiary, or other affiliate of Tenant or to any
successor in interest or entity acquiring fifty-one percent(51%)or more of Tenant's
stock or assets (collectively "Exempted Transfers") shall not be deemed an
assignment for the purposes of this Agreement and therefore shall not require the
consent of the Lessor, provided that Tenant reasonably demonstrates to the
Lessor's Executive Director the following criteria
(collectively the "Exempted Transfer Criteria"): (a) such transferee will have a
financial strength after the proposed transfer at least equal to that of Tenant
immediately prior to the transfer; (b) any such transferee assumes all of Tenant's
obligations hereunder; and (c) the experience and technical qualifications of the
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proposed transferee, either alone or together with Tenant's management team in
the provision of telecommunications or similar services, evidences an ability to
operate the Equipment/Leased Premises. Tenant shall give at least thirty-sixty
(3060)calendar days' prior written notice(the"Exempted Transfer Notice")to the
Lessor of any such proposed Exempted Transfer and shall set forth with specificity
in such Exempted Transfer Notice the reasons why Tenant believes the Exempted
Transfer Criteria have been satisfied. The Lessor Commission shall have a period
of thirty sixty(3060)calendar days (the"Exempted Transfer Evaluation Period")
from the date that Tenant gives the Lessor its Exempted Transfer Notice to object
in writing to the adequacy of the evidence contained therein. Notwithstanding the
foregoing, the Exempted Transfer Evaluation Period shall not be deemed to have
commenced until the Lessor has received from Tenant any and all additional
information the Lessor may reasonably require in connection with its evaluation of
the Exempted Transfer Criteria as set forth in the Exempted Transfer Notice, so
long as the Lessor give Tenant notice in writing of the additional information the
Lessor requires with fifteen (15) calendar days after the Lessor's receipt of the
original Exempted Transfer Notice. If the Lessor Commission fails to act upon
Tenant's Exempted Transfer Notice within the Exempted Transfer Evaluation
Period (as the same may be extended in accordance with the foregoing
provisions), such failure shall be deemed an affirmation by the Lessor that Tenant
has in fact established compliance with the Exempted Transfer Criteria to the
Lessor's satisfaction. - - -- -- -- - e e =--- - - -- --
a -
(f) Subsection 13 (a) , is hereby deleted in its entirety and replaced with the
following, and the remainder of Section 13 entitled "Installation and
Maintenance" is hereby amended as follows:
13. Installation and Maintenance.
(a) Tenant has completed the work for the installation of equipment on the Leased
Premises, as described on Exhibit B. Exhibit"B-1" includes detailed engineering
plans and specifications of the Licensed Area, which approval shall not be
unreasonably withheld, conditioned or delayed. While these initial improvements
have been approved by Lessor, in its proprietary capacity, all subsequent
improvements, upgrades or maintenance ("work") performed on the Leased
Premises or Licensed Area, having a value of $50,000 or more, or requiring the
application of a building permit, shall be subject to the consent of Lessor, which
consent shall not be unreasonably withheld or delayed, provided said work shall
not cause._damage..to the Building or unreasonably interfere with the Lessor's use
of its Property and is contained within the Leased Premises or Licensed Area. In
connection with these approvals, Lessor may require Tenant to post a construction
bond and/or provide other related construction insurance coverages which Lessor
deems necessary, in Lessor's sole and reasonable discretion. Tenant shall apply
for all permits and zoning approvals ("Permits") necessary for the Permitted Use,
as may be required by the City of Miami Beach, and comply with the condition of
said Permits. Said Permits are required and may not be waived. In the event
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Lessor does not provide Tenant a written request for modifications to Tenant's
Plans within thirty(30)business days of its receipt of Tenant's Plans,then Tenant's
Plans shall be deemed approved by Lessor.
(b) Tenant shall manage all engineering services, including intermodulation studies
and all site engineering and construction necessary to install, operate and maintain
Equipment on the Leased Premises and Licensed Area. The parties acknowledge
that in order to connect areas of the Leased Premises that are needed to make the
Equipment operational,.Tenant shall have the right to install conduit, sleeves and
cables connecting such locations and Equipment, all as more fully described. in
Exhibit B-1.
(c) Tenant or its agents shall install, construct and maintain their Equipment on the
Leased Premises and Licensed Area at no cost to the Lessor.
(d) Tenant shall, at its expense, keep and maintain the Equipment located on the
Leased Premises_and Licensed Area in good, safe, and clean order during the
Lease Term. Tenant's alterations to the Leased Premises are to be performed in
a workmanlike manner. In compliance with Section 712.10, Florida Statutes,
Tenant covenants that no mechanics', laborers' or materialmen's liens are to be
recorded against the Property. Tenant shall promptly pay for all materials supplied
and work done in respect of the Leased Premises and Licensed Area by,through,
or under Tenant so as to ensure that no lien is recorded against any portion of the
Leased Premises, Licensed Area, Property, or against Lessor's or Tenant's
interest therein. If a lien is so recorded, Tenant shall discharge it promptly by
payment or bonding. If any such lien against the Leased Premises, Licensed Area,
Property or Lessor's interest therein is recorded and not discharged by Tenant as
above required within fifteen (15) calendar days following written notice to Tenant,
Lessor shall have the right to remove such lien by bonding or payment and the
cost thereof shall be paid immediately from Tenant to Lessor. Lessor and_Tenant
expressly agree and acknowledge that no interest of Lessor in the Leased
Premises or Property shall be subject to any lien for improvements made by
Tenant in or for the Leased Premises, or Licensed Area, and Lessor shall not be
liable for any lien for any improvements made. by Tenant, such liability being
expressly prohibited by the terms of this Agreement. In accordance with applicable
laws of the State of Florida, Lessor has filed in the public records of Dade County,
Florida, a public notice containing a true and correct copy of this paragraph, and
Tenant hereby agrees to inform all contractors and material suppliers performing
work in or for or supplying materials to the Leased Premises or Licensed Area of
the existence of said notice. A breach of this provision may expose Tenant to
liability for damages for, among other claims, slander of title. In the event that
Lessor prevails against Tenant on any claim for equitable relief or damages,
Tenant shall be liable to Lessor for its reasonable attorney's fees and costs.
Tenant shall require all subtenants, agents, assigns, contractors, and
subcontractors to be placed on notice of this covenant and to affirm that they are
prohibited from recording liens against Lessor's Property.
(e) All work, installations and operations in connection with this Agreement shall
comply with all federal, state, and local laws, codes and regulations. Lessor
assumes no responsibility for the licensing, operation or maintenance of the
Equipment.
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f
(f) Lessor shall be responsible for the structural maintenance of the Building
("Building Work"). As the Tenant's facilities are installed upon the roof of the
Building, there may come a time that repairs are needed for the roof, or roof
replacement may be required. Tenant shall be responsible for all costs associated
with temporary or permanent relocation of the Equipment during the period the roof
is being repaired or replaced. The Building and Property are adjacent to the ocean,
and in an area exposed to the elements and potential hurricane and tropical storm
events. As such, the parties agree and recognize that roof work to the Building
may be required, and - - - --- -• 'e --••-• - -•••••_ - e_ -- -
provision 31(C), Tenant shall be solely responsible for the temporary relocation of
its Equipment during the repair or replacement. The Lessor shall not be
responsible for the Tenant's loss of signal, transmission, or services due to the
replacement or repair of the roof.Tenant acknowledges that a material inducement
in entering into this Agreement is Tenant's acceptance of this condition. Tenant
agrees to reasonably cooperate with Lessor to facilitate any Building Work,
provided however,to the extent practicable,the Building Work should minimize the
effects to Tenant's Equipment, and include suggestions as to the most cost
effective measures to minimize disruption to Tenant's Equipment. Lessor agrees
to provide at least ninety (90) calendar days' notice to Tenant of its intention to
perform Building Work; except in the case of emergency Building Work in which
case Lessor shall give as much notice as possible under the circumstances.
(g) Lessor shall be solely responsible for ensuring that the Building is operated in
compliance with all applicable federal,state, and local laws, codes and regulations
(the "Building Regulations"). Tenant may give Lessor written notice of its failure
to comply with said Building Regulations. In the event Lessor fails to correct said
done as is necessary to make the Leased Premises (and the Equipment located
Agreement.
(h) Tenant, and its employees, agents or invitees, shall take reasonable measures not
to damage any portion of the Building. Tenant shall be responsible for any damage
to the Building or Property caused during installation or repair of the Equipment
onto the Leased Premises or Licensed Area. Tenant shall have no duty to
reimburse Lessor for any expense associated with the normal wear and tear on
the roof, or any other expense not reasonably related to Tenant's use and
occupancy of the Leased Premises or Licensed Area.
(i) Tenant shall use only licensed contractors and subcontractors approved in writing
by Lessor to complete the construction and installation of Tenant's work at the
Leased Premises or Licensed Area, which approval shall not be unreasonably
withheld or delayed at the 1 ewer! Premisee
(g) Section 14 of the Agreement is hereby amended as follows:
14. Personal Property/Removal/Restoration.
(a) Personal Property/Removal of Equipment. All improvements, Equipment or
other property attached to or otherwise brought onto the Leased Premises or
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Licensed Area shall, at all times, remain the personal property of Tenant and,
at Tenant's option, may be removed by Tenant at any time during the Lease
Term, as more particularly described herein and in Section 13, provided,
however,the Equipment shall be removed within thirty(30)calendar days after
the termination or expiration of this Agreement pursuant to the terms of Section
25. Lessor waives any and all rights it may have, including any rights it may
have in its capacity as Lessor under this Agreement to assert any liens,
encumbrances or adverse claims, statutory or otherwise, related to or in
connection with the Equipment or a portion thereof, unless Tenant fails to
remove the. Equipmentwithin the thirty (30) day period, in which case the
Equipment will be deemed to be abandoned and shall thereafter become
property of Lessor. Tenant, in its sole discretion may remove the Equipment or
any portion of the Equipment at any time during the Lease Term of the
Agreement, provided reasonable notice is provided to the Lessor prior to
commencing the removal process, and provided a payment and performance
bond, in the amount acceptable to Lessor, is provided to the Lessor, to secure
the repairs to the Building or Property, if applicable. Tenant will not be required
(b) Restoration. Tenant will be responsible for the replacement of any trees,
shrubs or other vegetation damaged during the removal process. Additionally,
Tenant will restore the surface area and surrounding area to its original or
better condition, ensuring that any hardscape and landscape that was
disturbed during the removal process look uniform and not patched up. The
provisions of this section shall survive termination or expiration of this
Agreement.
(c) Section 16 of the Agreement is hereby amended to add the following new
paragraph at the end of the section:
However, nothing contained in this section or the Agreement shall constitute a
waiver by Lessor of its sovereign immunity or the provisions of Section 768.28,
Florida Statutes. The provisions of this section and of this indemnification shall
survive termination or expiration of this Agreement.
(d) Section 18 of the Agreement is hereby amended as follows:
18. Taxes and Assessments. Lessor shall pay all real estate taxes on the
Property. Tenant agrees to reimburse Lessor for any documented increase in
personal or ad valorem property taxes levied against the Leased Premises or
Licensed Area that are directly attributable to Tenant's use of the Leased Premises
or Licensed Area. Lessor agrees to provide Tenant any documentation evidencing
the increase and how such increase is attributable to Tenant's use of the Leased
Premises or Licensed Area. Tenant reserves the right to challenge any such
assessment, and Lessor agrees to cooperate with Tenant in connection with any
such challenge. Tenant shall pay all personal, intangible, sales or use taxes
associated with the installed Equipment on the Leased Premises.
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(e) Section 20 of the Agreement is hereby amended as follows:
20. Hazardous Material
(a) Tenant's Obligation and Indemnity. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any Hazardous
Material on or from the Leased Premises or Licensed Area in any manner
prohibited by law.
(b) If Tenant or its employees, agents, or contractors shall ever violate the provisions
of subsection (a), above, then Tenant shall clean up, remove, and dispose of the
Hazardous Material causing the violation, in compliance with all applicable
governmental standards, laws, rules, and regulations and repair any damage to
the Leased Premises, Licensed Area or Property within such period of time as may
be reasonable under the circumstances after written notice by Lessor, provided
that such work shall commence not later than thirty (30) calendar days from such
notice and be diligently and continuously carried to completion by Tenant or
Tenant's designated contractors. Tenant shall notify Lessor of its method, time,
and procedure for any clean up or removal of Hazardous Materials under this
provision; and Lessor shall have the right to require reasonable changes in such
method,time, or procedure or to require the same to be done after normal business
hours if reasonably required for the protection of other tenants or occupants of the
Building or Property.
(c) Unless such claims or damages are the result of Lessor's negligence, Tenant
agrees to defend, indemnify, and hold harmless Lessor, against any and all claims,
costs, expenses, damages, judgments, penalties, costs, liability, losses, and the
like (including any and all sums paid for settlement of claims, attorneys' fees, and
consultants' and experts' fees), which Lessor may hereafter be liable for, suffer,
incur, or pay arising under any applicable environmental laws, rules, and
regulations and resulting from or arising out of any breach of the covenants
contained in this Section 21.20, or out of any act, activity, or violation of any
applicable environmental laws, rules, and regulations on the part of Tenant, its
agents, employees, or assigns. Tenant's liability under this Section 24 20 shall
survive the expiration or any termination of this Agreement.
(d) Lessor's Obligation. Lessor shall not(either with or without negligence) cause or
permit the escape, disposal or release of any Hazardous Material on or from the
Property or the Leased Premises in any manner prohibited by law.
(f) Section 21 of the Agreement is hereby amended as follows:
21. interference with Tenant's Business. Tenant shall have the non-exclusive right to
construct, install and operate Equipment that emit radio frequencies on the Property.
Lessor agrees that it will not permit the construction, installation or operation on the
Property of any equipment or device that directly interferes with the Permitted Usei
provided, however, that Tenant will operate its Equipment in a manner that will not
cause harmful interference to the public safety communication system used by the
City of Miami Beach, Florida or any other local governmental agencies for public safety
purposes ("Public Safety Telecommunications Equipment") at or near the Property,
even if the Public Safety Communications Equipment were installed after the effective
date of the Agreement. In the event that Tenant's Equipment causes harmful
interference with any Public Safety Telecommunications Equipment, and such
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interference is not cured within forty-eight(48) hours after Tenant's receipt of written
notice from Lessor, Tenant shall, if directed by Lessor, cease operation of its
Equipment until Tenant is able to cure and eliminate the interference to the satisfaction
of Lessor.
(g) Section 22 of the Agreement is hereby amended as follows:
22. Default/Payment and Performance Bond.
(a) Notice of Default; Cure Period. In the event that there is a default by Lessor or
Tenant (the "Defaulting Party") with respect to any of the material provisions of
this Agreement or Lessor's or Tenant's obligations under this Agreement, the other
party(the"Non-Defaulting Party")shall give the Defaulting Party written notice of
such default. After receipt of such written notice, the Defaulting Party shall have
thirty (30) calendar days in which to cure any monetary default and sixty (60)
calendar days in which to cure any non-monetary default. The Defaulting Party
shall have such extended periods, which shall not exceed an additional thirty(30)
days("Extended Cure Period"), as may be required beyond the sixty(60)calendar
day cure period to cure any non-monetary default if the nature of the cure is such
that it reasonably requires more than sixty (60) calendar days to cure, and
Defaulting Party commences the cure within the sixty (60) calendar day period,
and thereafter continuously and diligently pursues the cure to completion within
the Extended Cure Period. The Non-Defaulting Party may not maintain any action
or effect any remedies for default against the Defaulting Party unless and until the
Defaulting Party has failed to cure the same within the time periods provided in this
Section.
(b) Consequences of Tenant's Default. In the event that Tenant is in default beyond
the applicable periods set forth above, Lessor may, at its option, upon written
notice: (i) terminate this Agreement provided that Lessor has been materially and
substantially harmed by such default; (ii)take any actions that are consistent with
Lessor's rights, including pursing the collection of the Payment and Performance
Bond described in subsection (d) below; or (iii)sue for injunctive relief, sue for
specific performance, or sue for damages. In no event shall Tenant be liable to
Lessor for consequential, indirect, speculative or punitive damages in connection
with or arising out of any default.
(c) Consequences of Lessor's Default. In the event that Lessor is in default beyond
the applicable periods set forth above, Tenant may, at its option, upon written
notice: (i)terminate this Agreement, vacate the Leased Premises and be relieved
from all further obligations contained herein; " -- - -- -- -- -- -• - - -
specified in such notice, in which case any expenditures made by Tenant in so
doing shall be deemed paid for the account of Lessor and Lessor agrees to
- • __ - - _ _ - - - -- - - - --- e""-":; (ti+) take any actions that
are consistent with Tenant's rights; or(lily) sue for injunctive relief, sue for specific
performance, sue for damages, or set-off from Rent any amount expended by
Tenant as a result of such default. In no event shall Lessor be liable to Tenant for
consequential, indirect, speculative or punitive damages in connection with or
arising out of any default.
(d) Payment and Performance Bond. Tenant shall, within thirty (30) days from the '
affective Date of Amendment No. 1 to the Agreement furnishto the Executive
Director a l'ertormance bond in the penal sum stated below for theayment of
which I enant snail bind itself for the taithtul pertormance of the terms and
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conditions of this Agreement. A Performance Bond, in the amount of Twenty
$2o,0UU.UU) Dollars shall be provided b I enant in faithful observance of this
greement.A cash deposit irrevocable letter of credit,or certificate of deposit may
also suffice as determined by the executive Director, in his sole and reasonable
discretion. fne torm of the,Payment and Performance bond or alternate security
shall be approved by the executive Director. In the event that a eertiticate of
Deposit is approved, itshall be a I wenty I housand.($20,000.U0) Dollar one-year
Certificate of Deposit in favor of Lessor,which snail be automatically renewed, the
original of which shall be held b the Lessor. I enant snail be so required to
maintain said Performance bondoralternate security in full force and effect
throughout the _l erm of tnis Agreement. Tenant snail nave an affirmative duty to
notify the executive Director , in wnting, in the event said Pertormance bond or
alternate secunty lapses or otherwise expires. All interest that accrues in.
connection with any financial instrument or sum of money referenced above snail
be the property of I enant, except in an event of default, in which case the Lessor
shall be entitled to all interest that accrues atter the date of default.
All bonds shall be written through surety insurers authorized to do business in the
State of Florida as surety, with the following qualifications as to management and
financial strength according to the latest edition of Best's Insurance Guide,
published by A.M. Best Company, Oldwick, New Jersey of B V or better.
(h) Subsection (f) of Section 23 of the Agreement, entitled "Termination; Effect of
Termination", is hereby amended as follows:
(f)Lessor shall have no liability to the Tenant for future profits or losses in the event of
termination under this Section 2423.
(i) Section 25 of the Agreement is hereby amended as follows:
25. Surrender of the Property. Upon the expiration or early termination of this
Agreement, Tenant shall, within thirty (30) calendar days, remove its Equipment
and restore the Leased Premises and Licensed Area to its original condition,
reasonable wear and tear excepted and pursuant to the restoration provisions set
forth in subsection 14(b). Lessor and Tenant agree and acknowledge that all of
the Equipment is and shall remain the personal property of the Tenant. Subject to
Tenant's performance of its obligations hereunder, Tenant shall have the right to
remove the same, whether or not said items are considered fixtures and
attachments to real property under applicable law. Tenant will not be required to
remove from the Property any foundation or underground utilities or Equipment,
unless Lessor, at its sole discretion, requires Tenant to remove such foundation or
underground utilities or Equipment. Anyunderground utilities or Equipment that is
not removed by Tenant, or not required to be removed by Lessor, shall be.
considered abandoned and title and interest thereto shall automatically transfer to
Lessor.
(j) Subsection 32 of the Agreement is hereby amended as follows:
32. Sovereign Immunity, Maximum Liability, Waiver of Certain Damages and
Attorney's Fees.
(a) Lessor does not waive sovereign immunity under 768.28, Florida Statutes_
bc cntiticd to its rcasonablc attorney's fees and costs. Section 768.28, Florida
Statutes provides that the Lessor shall not be liable to pay a claim or a judgment
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(b) In any proceeding against Lessor its maximum liability to Tenant for breach of
contract shall not exceed Tenant's payment to Landlord for the year in which the
liability arose. Lessor shall not be liable to Tenant for damages, penalties or
expenses in excess of Tenant's annual payment to the Landlord for the year in
which the liability arose.
(c) Nothing contained herein shall be construed or interpreted as denying to either
party any remedy or defense available to such party under the laws of the State of
Florida or federal law. Tenant and Lessor each waives any claims that each may
have against the other with respect to consequential, incidental, punitive or special
damages, however caused, based on any theory of liability.
(k) Section 38 of the Agreement is amended as follows:
38. Record Retention. Tenant shall comply with the State of Florida public record
retention requirements and shall maintain a copy of all documents reflecting
services rendered to the Lessor for three (3) years after the termination of this
Agreement, and final payment has been made and all other pending matters are
closed. Further, Tenant shall provide access to the Lessor, or any of Lessor's duly
authorized representatives, to any books, documents, papers, and records which
are directly pertinent to this Agreement for the purpose of making audit,
examination, excerpts and transcriptions. However, Tenant
te-revide warrants and represents to Lessor that Tenant may have records which
it considers to contain trade secret information, which records include any third
party agreements which Tenant has entered into with other parties;exceptti
which in such case, Tenant shall only be obligated to furnish the cover and
signature pages, as well as that portion of the agreement perta+ni4ag-to dates of
tc y. Notwithstanding the foregoing, at Lessor's option and discretion, Tenant
shall provide Lessor with these records redacting the information believed, in good
faith, to be a trade secret: or provide Lessor the complete copy of the documents,
marked conspicuously as "Confidential" and containing a Trade Secret Affidavit,
acknowledging that the information requested by Landlord is a Trade Secret.
Additionally, any document or information, regardless of physical form, created
pursuant to this Agreement, in connection with the transaction of the Lessor's
official business, shall not be considered trade secret information including,without
limitation, the terms of this Agreement, Rent or any other payments or statements
in connection with this Agreement("Exclusions"). In the event that Lessor receives
a Public Records Request ("PRR") for a document that has been conspicuously
marked "Confidential", that is not part of the Exclusions, the City will notify Tenant
so that Tenant may proceed to secure a protective order within thirty (30) days
from receipt of the PRR. If Tenant fails to secure a protective order, Lessor shall
be free to release the documents as Lessor deems to be in compliance with the
PRR laws, and Tenant hereby releases Lessor from any liability in connection
therewith.
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(1) A new Section 43 is hereby added to the Agreement as follows:
43. Inspector General Audit Rights
(a) Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has
established the Office of the Inspector General which may, on a random basis,
perform reviews, audits, inspections and investigations on all City contracts,
throughout the duration of said contracts. This random audit is separate and
distinct from any other audit performed by or on behalf of the City. Tenant agrees
to bound by this City Code Provision
(b) The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past, present and proposed City programs, accounts,
records, contracts and transactions. In addition, the Inspector General has the
power to subpoena witnesses, administer oaths, require the production of
witnesses and monitor City projects and programs. Monitoring of an existing City
project or program may include a report concerning whether the project is on time,
within budget and in conformance with the contract documents and applicable law.
The Inspector General shall have the power to audit, investigate, monitor, oversee,
inspect and review operations, activities, performance and procurement process
including but not limited to project design, bid specifications, (bid/proposal)
submittals, activities of the Tenant, its officers, agents and employees, lobbyists,
City staff and elected officials to ensure compliance with the contract documents
and to detect fraud and corruption. Pursuant to Section 2-378 of the City Code,
the City is allocating a percentage of its overall annual contract expenditures to
fund the activities and operations of the Office of Inspector General.
(c) Upon ten (10) days written notice to the Tenant, the Tenant shall make all
requested records and documents available to the Inspector General for inspection
and copying. The Inspector General is empowered to retain the services of
independent private sector auditors to audit, investigate, monitor, oversee, inspect
andreview operations activities, performance and procurement process including
but not limited to project design, bid specifications, (bid/proposal) submittals,
activities of the Tenant its officers, agents and employees, lobbyists, City staff and
elected officials to ensure compliance with the contract documents and to detect
fraud and corruption.
(d) The Inspector General shall have the right to inspect and copy all documents and
records in the Tenant's possession, custody or control which in the Inspector
General's sole judgment, pertain to performance of the Agreement, including, but
not limited to original estimate files, change order estimate files, worksheets,
proposals and agreements from and with successful subcontractors and suppliers,
all project-related correspondence, memoranda, instructions,financial documents,
construction documents, (bid/proposal) and contract documents, back-change
documents, all documents and records which involve cash, trade or volume
discounts, insurance proceeds, rebates, or dividends received, payroll and
11
• personnel.records and supporting documentation for the aforesaid documents and
records.
(e) The Tenant shallmake available at its office at all reasonable times the records,
materials, and other evidence regarding the acquisition (bid preparation) and
performance of this Agreement; for examination, audit, or reproduction, until three (3)
years after final payment under this Agreement or for any longer period required by
statute or by other clauses of this Agreement. In addition:
i. If this Agreement is completely or partially terminated, the Tenant shall make
available records relating to the work terminated until three(3)years after any resulting
final termination settlement; and
ii. The Tenant shall make available records relating to appeals or to litigation or the
settlement of claims arising under or relating to this Agreement until such appeals,
litigation, or claims are finally resolved.
(f) The provisions in this section shall apply to the Tenant, its officers, agents,employees,
subcontractors and suppliers. The Tenant shall incorporate the provisions in this
section in all subcontracts and all other agreements executed by the Tenant in
connection with the performance of this Agreement.
(g) Nothing in this section shall impair any independent right to the Lessor to conduct
audits or investigative activities. The provisions of this section are neither intended nor
shall they be construed to impose any liability on the Lessor by the Tenant or third
parties.
(h) A new Section 44 is hereby added to the Agreement as follows:
44. No Discrimination.
In connection with the performance of the Services, the Tenant shall not exclude from
participation in, deny the benefits of, or subject to discrimination anyone on the grounds
of race, color, national origin, sex, age, disability, religion, income or family status.
Additionally, Tenant shall comply fully with the City of Miami Beach Human Rights
Ordinance, codified in Chapter 62 of the City Code, as may be amended from time to
time, prohibiting discrimination in employment, housing, public accommodations, and
public services on account of actual or perceived race, color, national origin, religion,
sex, intersexuality, gender identity, sexual orientation, marital and familial status, age,
disability, ancestry, height, weight, domestic partner status, labor organization
membership, familial situation, or political affiliation.
(i) A new Section 45 is hereby added to the Agreement as follows:
45. Tenant's Compliance With Florida Public Records Law
(a) Tenant shall comply with Florida Public Records law under Chapter 119, Florida
12
Statutes, as may be amended from time to time.
(b) The term "public records"shall have the meaning set forth in Section 119.011(12),
which means all documents, papers, letters, maps, books, tapes, photographs,
films, sound recordings, data processing software, or other material, regardless of
the physical form, characteristics, or means of transmission, made or received
pursuant to law or ordinance or in connection with the transaction of official
business of the Lessor.
(c) 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 Tenant shall:
(1) Keep and maintain public records required by the Lessor to perform the
service;
(2) Upon request from the Lessor's custodian of public records, provide the
Lessor 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 Tenant does not transfer the records to
the Lessor;
(4) Upon completion of the Agreement, transfer, at no cost to the Lessor, ail
public records in possession of the Tenant or keep and maintain public
records required by the Lessor to perform the service. If the Tenant
transfers all public records to the Lessor upon completion of the
Agreement, the Tenant shall destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure
requirements. If the Tenant keeps and maintains public records upon
completion of the Agreement, the Tenant shall meet all applicable
requirements for retaining public records. All records stored electronically
must be provided to the Lessor, upon request from the Lessor's custodian
of public records, in a format that is compatible with the information
technology systems of the Lessor.
Lri) REQUEST FOR RECORDS; NONCOMPLIANCE.
LI) A request to inspect or copy public records relating to the Lessor's contract
for services must be made directly to the Lessor. If the Lessor does not
possess the requested records, the Lessor shall immediately notify the
Tenant of the request, and the Tenant must provide the records to the
Lessor or allow the records to be inspected or copied within a reasonable
time.
2) Tenant's failure to comply with the Lessor's request for records shall
constitute a breach of this Agreement,and the Lessor, 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 Tenant who fails to provide the public records to the Lessor within a
reasonable time may be sublect to penalties under s. 119.10.
(e) CIVIL ACTION.
(1) If a civil action is filed against a Tenant to compel production of public
records relating to the Lessor's contract for services,the court shall assess
13
and.award -against the Tenant the reasonable costs of enforcement,
including reasonable attorneys'fees; if:
a. The court determines that the Tenant unlawfully refused to comply 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 Tenant has not complied with the request to the Lessor and to the
Tenant.
2) A notice complies with subparagraph (1)(b) if it is sent to the Lessor's
custodian of public records and to the Tenant at the Tenants address listed
on its contract with.the Lessor or to the Tenant's registered agent. Such
notices trust be sent by common carrier delivery service or by registered,
Global Express Guaranteed, or certified mail,with postage or shipping paid
by the senderr and with evidence of delivery, which may be in an electronic
format..
(3) A Tenant who complies with a public records request within 8 business.
days after the: notice is sent is not liablefor the reasonable costs of
enforcement.
fa IF __THE TENANT HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO
THE TENANT'S DUTY TO. PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT,. . CONTACT THE
-PUBLICCUSTODIAN OF
MIAMI BEACH :REDEVELOPMENT AGENCY
ATTENTION.: RAFAEL E. GRANADO, SECRETARY
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANAD..O MIAMIBEACHFL.GOV
PHONE: 305-673-7411
3. RATIFICATION.
Except as amended herein, all other terms and conditions of the Agreement shall
remain unchanged and in full force and effect. In the event there is a conflict
between the provisions of this Amendment and the Agreement, the provisions of
this Amendment shall govern.
THE REMAINDER OF THIS PAGE IS.INTENTIONALLY LEFT BLANK.:
14
IN.WITNESS WHEREOF, the parties heretohave caused this Arnendment,to be
executed by their appropriate:officials, as of the date first entered above.
FOR CITY:: MIAMI BEACH RE DEVELOPMENT
AGE CY
ATTEST:
By: . . .:
Rafael E. Granado, Secretary Ji ► L. '.rales, Executive
Direr or
6.11,2itoZd
Date
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16
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ACCOMPANY DESCRIPTION
1111 OFA PARCEL OF LAND LYING IN •
N SECTION U.TOWNSHIP 53 SOUTH.RANGE 41 LAS'1,
. MIAHI-DADE COUNTY,FLORIDA
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DESCRIPTION
OF A PARCEL OF LAND LYING IN
SECTION 11,TOWNSHIP 53 SOUTH,RANGE 42 EAST,
MIAMI-DADE COUNTY,FLORIDA
(i0' EASEMENT)
LEGAL DESCRIPTION:
A 10' EASEMENT, LYING IN THE STATE OF FLORIDA, COUNTY OF MIAMI—DADE. IN
SECTION 11, TOWNSHIP 53 SOUTH, RANGE 42 EAST, BEING PART OF LOT 1,
BLOCK 3, SECOND OCEAN FRONT SUBDIVISION. AS RECORDED IN PLAT BOOK 28.
PAGE 28 OF THE PUBLIC RECORDS OF MIAMI—DADE COUNTY, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS.
COMMENCING AT THE INTERSECTION OF THE CENTERLINES OF WEST 63RD STREET
AND ALLISON ROAD (FORMERLY WATER VIEW PRADO) ACCORDING TO THE PLAT OF
INDIAN CREEK SUBDIVISION AS RECORDED IN PLAT BOOK 31 AT PAGE 75 OF THE
PUBLIC RECORDS OF MIAMI—DADE, FLORIDA; THENCE N.80'23'28"E., ALONG SAID
CENTERLINE OF WEST 63RD STREET FOR A DISTANCE OF 250.90; THENCE
N.09'26'20"W. LEAVING SAID CENTERLINE FOR A DISTANCE OF 36.59 FEET TO A
POINT ON THE EAST SIDE OF A CONCRETE SEAWALL. THE MEAN HIGH WATER LINE.
THE BULKHEAD LINE FOR JACKSONVILLE—MIAMI INTRACOASTAL WATERWAY SOVEREIGN
SUBMERGED LAND EASEMENT NO 25031 (2280-13) TO THE STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION, DATED 5-13-1941; THENCE CONTINUE
N.09'26'20"W ALONG SAID CONCRETE SEAWALL. MEAN HIGH WATER LINE AND SAID
BULKHEAD LINE FOR A DISTANCE OF 5.13 FEET; THENCE N-67-52'411., LEAVING
SAID CONCRETE SEAWALL. MEAN HIGH WATER LINE AND SAID BULKHEAD LINE FOR A
DISTANCE OF 80 47 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT HAVING A
RADIUS OF 502.50 FEET; THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 13'03'25", A CHORD BEARING OF N.74'24'24"E., A CHORD LENGTH OF 114.27
FEET AND AN ARC LENGTH OF 114.51 FEET. THENCE N.80'56'07"E. FOR A DISTANCE
OF 104.70 FEET TO A POINT ON THE WEST FACE OF AN EXISTING CONCRETE
SEAWALL. MEAN HIGH WATER LINE AND SAID BULKHEAD LINE AND (NE POINT OF
BEGINNING HAVING A NORTHING OF 550178.21 AND AN EASING OF 944953,60;
THENCE N 08'03'1I"E. ALONG SAID CONCRETE SEAWALL. MEAN HIGH WATER LINE AND
SAID BULKHEAD LINE FOR A DISTANCE OF 2.61 FEET. THENCE N.80'56'07"E..
LEAVING SAID CONCRETE SEAWALL. MEAN HIGH WATER LINE AND SAID BULKHEAD LINE
FOR A DISTANCE OF 87.09 FEET TO A POINT ON THE NORTHERLY RIGHT OF WAY OF
WEST 63RD STREET AND THE BEGINNING OF A NON—TANGENT CURVE TO THE RIGHT
HAVING A RADIUS OF 135.00 FEET; THENCE ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 0147'16". A CHORD BEARING OF 5.4143'01"PL, A CHORD
LENGTH OF 18.34 FEET AND AN ARC LENGTH OF 18.35 FEET; THENCE S.80'56'07"w
LEAVING SAID NORTHERLY RIGHT OF WAY FOR A DISTANCE OF 74.80 FEET TO A
POINT ON SAID CONCRETE SEAWALL. MEAN HIGH WATER LINE AND SAID BULKHEAD
LINE; THENCE N.08'03'I 1-E. ALONG SAID CONCRETE SEAWALL. MEAN HIGH WATER
LINE AND SAID BULKHEAD LINE FOR A DISTANCE OF 7 85 FEET TO THE POINT OF
BEGIN NINQ,
EASEMENT CONTAINS 813 SQUARE FEET. 0 019 ACRES. MORE OR LESS
1. BEARINGS SHOWN HEREON ARE TRUE NORTH BASED ON STATE
PLANE COORDINATES FLORIDA EAST ZONE, NORTH AMERICAN DATUM OF
1983 (1990 ADJUSTMENT).
2. DISTANCES ARE IN FEET AND DECIMALS THEREOF
3 PARCEL IS SUBJEC' TO EASEMENTS. RESERVATIONS UR
RESTRICTIONS AND RIGHT—OF—WAYS (RECORDED AND UNRECORDED.
WRITTEN AND UNWRITTEN)
WEST 63RD STREET
INDIAN CREEK EAST CHANNEL
MIAMI—DADE COUNTY,FLORIDA
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