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94-21035 RESO Incomplete RESOLUTION NO. ~21035 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A BELLSOUTH MOBILITY, INC. LEASE FOR SPACE TO MAINTAIN AND OPERATE A MINI CELLULAR SITE AT OLD CITY HALL. WHEREAS, the City of Miami Beach has been experiencing poor cellular quality in the South Beach area for all BellSouth Mobility, Inc, cellular phone users and, in particular, City employees located in the Police Department Facility; and WHEREAS, BellSouth Mobility, Inc, has surveyed the poor coverage area and determined that a Mini Cellular Site is required to upgrade cellular reception quality; and WHEREAS, BellSouth Mobility, Inc, has proposed to lease, maintain and operate a Mini Cellular Site at the Old City Hall, 1100 Washington Avenue, 9th Floor, City Radio Site, for an agreed upon $6,200.00 per year plus applicable sales tax the first year plus a 5% increase for each subsequent year for a total of three years with option to renew for an additional three year term, such lease Agreement attached hereto as "Exhibit A"; and WHEREAS, the City can cancel the Agreement upon written notification to BellSouth Mobility, Inc.; and WHEREAS, the BellSouth Mobility, Inc, Agreement is to take effect retroactive to January 1, 1994; and WHEREAS, the City of Miami Beach Computers and Communications Division found, determined and declared that the BellSouth Mobility, Inc, Agreement is necessary to provide improved cellular quality on Miami Beach, NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA THAT THE MAYOR AND CITY CLERK EXECUTE THE BELLSOUTH MOBILITY, INC. AGREEMENT ATTACHED HERETO AS "EXHIBIT A". PASSED AND ADOPTED THIS 2nd DAY OF February ,1994. MAYOR ATTEST: CLERK FORM APPROVED I LEGAL DEPT. By ....::r (..i) Dale /. l. t... ., '" CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 COMMISSION MEMORANDUM NO, (n9>-QY TELEPHONE: (305) 673.7010 FAX: (305) 673.7712 OFFICE OF THE CITY MANAGER TO: Mayor Seymour Gelber and Members of the C~ Commission DATE: February 2, 1994 FROM: Roger M. Cart City Manager SUBJECT: AGREEMENT BETWEEN THE CITY AND BELLSOUTH MOBILITY, INC. FOR SPACE TO MAINTAIN AND OPERATE A MINI CELLULAR SITE AT OLD CITY HALL, 1130 WASHINGTON AVENUE. 9TH FLOOR. CITY RADIO SITE. MIAMI BEACH. FL 33139. ADMINISTRATION RECOMMENDATION: It is recommended that the Mayor and City Clerk be authorized to sign a contractual agreement with BellSouth Mobility, Inc. to maintain and operate a Mini Cellular Site at Old City Hall. BACKGROUND: The City of Miami Beach was contacted by BellSouth Mobility, Inc. when it was determined that poor cellular quality was being experienced in South Beach by all BellSouth Mobility, Inc. cellular phone users and, in particular, City employees located in the Police Department Facility. The poor coverage service area was surveyed by BellSouth Mobility, Inc, and it was recommended that a Mini Cellular Site be installed in the vicinity of Old City Hall in order to improve service, The compact communications facility will consist of an equipment cabinet, radio equipment, three (3) small stick antennas and coaxial 'transmission lines. An agreement was reached between City of Miami Beach and BellSouth Mobility, Inc. to use the 9th Floor City Radio Site at Old City Hall to house a Mini Cellular Site, In return, BellSouth Mobility, Inc. has agreed to pay the City of Miami Beach an annual fee of $6,200,00 plus applicable sales tax the first year plus 5% increase for each subsequent year for a total of three years. The City has the option to renew the agreement under the same terms for an additional three years. The City can terminate this agreement by providing written request for such to BellSouth Mobility, Inc, CONCLUSION: The authorization to proceed with the agreement is necessary so that BellSouth Mobility, Inc, can begin construction of the site as soon as the agreement has been approved in order to improve service to its customers, RMClar Attachment .. 13 DATE R-3-C ;)-d _C~ AGENDA ITEM lij~~lf U (1- -r;- q.,) PROVISION OF SPACE AGREEMENT (MICROCELL) This provision Of Space Agreement entered into this ___ day of , 1994, by and between the City of Miami Beach, (hereinafter referred to as "CITY") and BELLSOUTH MOBILITY INC, (hereinafter referred to as "TENANT"). CITY is the owner of a certain parcel of property located at 1130 Washinaton Avenue. 9th Floor. Radio Room. Miami Beach, Dade County, Florida, (the "Property"), together with the improvements thereon including a multi-story office building (the "Building"). TENANT desires to use a portion of the Building, subject to the terms and conditions set forth below. In conllideration of the foregoing premises, and the mutual covenants contained herein, the parties agree as follows: 1. The Subject Premiselil' CITY will lease to TENANT space on and within the Building (the 'subject premises") to the extent necessary to enable TENANT to maintain and operate . compact communications facility which shall consist of an equipment cabinet, radio equipment, certain antenna(s), and coaxial transmission lines. as described and depicted on the attached Exhibit "A", and incorporated herein by reference, to be utilized as a part of its cellular communications system, at an elevation and with such equipment and related cables satisfactory to TENANT to permit the proper operation of this facility. The cabinet shall not exceed the following dimensions, 48 inches in width by 108 inches in length by 72 inches in height. Antenna(s) Location, The exact location of the subject antennas shall be determined so all to avoid interference with any of CITY's, equipment, cablell, lines, antennas and/or any other property that may be located on the Building and/or the subject premises. CITY grants to TENANT permission to attach necessary transmission lines, cables, fixtures, and other associated equipment to make said antennas operational. TENANT will provide all mounting hardware necessary for its installation. CITY agrees to cooperate with TENANT and use its be.t efforts so that TENANT's equipment and operations are not obstructed. CITY hereby grant. TENANT the nonexclusive right for ingress and egress to the parking areas and the subject premise. seven (7) days a week, twenty four (24) hours a day, inCluding during normal business hours, for the installation, maintenance, and operation of this communications facility, all at TENANT's expense. 2. Ilrm: This frovision Of Space Agreement shall commence upon the installation of Tenant'. equipment, which date shall be provided to CITY in writing within ten (10) days proceeding the start of eonstruction and which written notice shall 1 IDrn~~'\r 15 DATE R.3-C- L ;)-~-gL AGENDA ITEM L~ 00 tAl W 1f automatically become a part of this Agreement. This Provision Of Space Agreement shall be for an initial period of three (3) years, subject to the terms and conditions set forth in this Agreement. TENANT shall have the option to extend this Agreement for two (2) additional three (3) year terms, and such extensions shall auto- matically occur unless TENANT provides CITY written notice of its intention not to extend this Provision Of Space Agreement at leaat thirty (30) days prior to the end of the then current term. 3, B~ntal Schedule I TSNANT shall pay an annual rent of Sixty-two Hundred and 00/100 Dollars ($6,200.00), plus applicabl. sales tax. The rent shall be paid to CITY or to such other person, firm or place as CITY may from time to time designate in writing at least thirty (3D> days in advance of any rental payment date. The rent shall be due and payable on the Commencement Date and on the same date each year thereafter unless modified in accordance with this Agreement. The annual rental for each extension term as provided in paragraph 2 shall be the amount of the prior term's rent plus five percent (5\>. 4. Permit Approvals: TENANT is responsible for obtaining all necessary Federal, State and local governmental approvals. S. Approval of plans: TENANT, at its sole cost and expense shall submit to CITY for CITY's written approval a eet of plans and specifications (the .Plans.) showing the location, size, type and other specifications of the communication facility. CITY shall have thirty (30) days from receipt of the Plans to eelllll\el'!.l! 81'1d:el!' appl!'8Ve review said Plans or TENANT's Plans shall automatically be deemed acceptable to CITY and thereby approved. 6. Electrical Utilities: CITY shall furnish the subject premises with electrical service. TENANT shall furnish, to its facility, electric service for the operation of its communications equipment. TENi\N'I' lihall .eel;ll'e .cpal!'alll!l eleelll!'1e BBI!"\ iee, 1ll1lil'lllaiR ills eleeuieal 'uUitiu aftEl 8. ulely Hallle fer alll" eleetdeity el~~nees relatift' lie the .~~;eet ,relllieee. TENANT shall provide electrical connections and hookups. CITY shall provide and ~ay for 81a~trieitYI 7. Com~letion of Work: Whenever TSNJUn' is required to perform any approved work upon the subject premises, TENANT shall promptly commence the work and, once commenced, diligently and continually pursue the work and direct the work utilizing TENANT's best efforts and reasonable care to cauee the work to be completed in an expeditious fashion. TENANT agrees that illl finish work and any construction expenses related to the installation of TENANT'. equipment will be at TiNANT's expense. Said work is to be performed in a workmanlike manner and done so that no mechanics', laborer.' or materialmen' liens will be permitted on the Property. Upon termination of thil 2 IIDfM&WlT 16 (~ 00 ill ~ 1I Provision Of Space Agreement, TENANT shall remove all of its equipment and repair any damage done by said removal, normal wear and tear excepted. 8. PaYment of Costs and Expenses. TENANT shall provide and pay for all labor, materials, goods and supplies, equipment, appliances, tools. construction equipment and machinery and other facilities and services necessary for the proper execution and completion of the work. TENANT shall promptly pay when due all costs and expenses incurred in connection with the work. TENANT shall pay all sales, consumer, use and similar taxes required by law in connection with the work, and shall secure and pay for all permits, fees and licenses necessary for the performance of the work. 9. Reoairs. If the Building is destroyed or damaged to such an extent that in CITY's 801e judgement repair would be an imprudent business deCision, CITY may elect not to repair or rebuild the Building and in such event, may terminate this Provision Of Space Agreement and reimburse TENANT the pro-rata share of the rent that has been paid in advance of any unexpired term hereunder. 10. !.lB. TENANT shall use the subject premises for the purpose of placing, maintaining and operating a Mobile Communications FaCility and uses incidental thereto. All improvements shall be at TENANT's expense. It i. understOOd and agreed that TENANT's ability to use the subject premises 18 contingent upon its obtaining after the execution date of this provision of space agreement, all of the certificate., permit. and other approvals that may be required by any federal, state, or local authorities. CITY shall cooperate with TENANT in it. effort to obtain such approvals and shall take no action which would adversely affect the status of or the use thereof by TiNANt. In ths event that any of such applications should be finally rejected or radio frequency tests are found to be unsatisfactory or any certificate, permit, license or approval issued to TENANT ia canceled, expires, lapses, oris otherwise withdrawn or terminated by governmental authority so that TENANT in its sole discretion will be unable to use the subject premises for its intended pu~oses, TENANT .hall have the right to terminate this Agreement, Notice of TENANT's exercise of its right to terminate shall be given to CITY in writing by certified mail, return receipt requested, and shall be effective upon receipt. All rentals paid to said termination date shall b. retained by CIT)'. Upon such termination, this Agreement shall become null and void and all the parties shall have no further obligations, including the payment of money, to each other. 11. Jneerference.: In the event interference is encountered, TiNANT will exercise its best effort. to promptly and diligenely 3 \ID ill li\ ~ \1 17 lIDOOffi~1f resolve such problems immediately after notice by CITY. 12. Indemnification and Hold Harmless: TENANT, to the extent permitted by law, agrees to indemnify, defend and hold harmless the CITY, from and against any and all damages, liability, loss and e1aims for injuries to or death o~ persons and for damage I , liability. loss and claims to the subject premises, appurtenances or approaches thereto, arising out of or in connection with TENANT's use or occupancy of tbe subject premises. 13. Terminaticm, Upon termination of this Provision Of Space Agreement, TENANT shall. within a reasonable amount of time, remove its personal property and fixtures from the subject premiaes restoring the premises to its original condition ordinary wear and tear excepted. If such time for removal causes Tenant to remain after termination of this Provision Of Space Agreement I TENANT shall pay rent on the eXisting monthly pro-rata basis until such time as the removal of the personal property and fixtures are completed. 14. Default: Should TENANT fail to pay any amounts due CITY hereunder or fail to cure any breach of any other provision of this Provision Of Space Agreement after thirty (30) days written notice and demand. CITY may terminate this Agreement and require TENANT to remove or cause to be removed all of the TENANT'. equipment. 15. ~ssi9nment. Sale. or Transfer: This prOVision of apace agreement may not be sold, assigned or transferred at any time except to TENANT's principal, affiliates or subsidiaries of its principal or to any company upon which TENANT il merged or consolidated. As to other pareies, this provision Of Space Agreement may not be sold, assigned or transferred without the written consent of the CIT~, such consent not to be unreasonable withheld. TENANT may sublease the subject premises upon notice to CITY. 16. Notices: All notices hereunder must be in writing and shall be deemed valid. if sent by certified mail, return receipt requested, addressed as follows, or sent to any other address that the party to be notified may have designated to the sender by like notice: . TENANT: City of Miami Beach Computers , ~ommunication8 Division Attn I Director 1100 Washington Avenue Miami Beach, PL 13139. BellSQuth Mobility Inc 500 Cypress Creek Road Suite 700 Pt, Lauderdale, FL 33309 ATTN: Manager Real Setate 4 OOOOlAllfTr CIT'l: 18 @ 00 ffi ~ \f 17. Attorney Fees and Costs. In connection with any enforcement action or litigation arising out of thil Provision of Space Agreement, the prevailing party, whether CITY or TENANT shall be entitled to recover all costs incurred including attorney's fees and legal assistant fees for services rendered 1n connection therewith, including appellate proceedings and post judgment proceediltg's. 18. Miscellaneous I a) Should the CITY, at any time during the term of this Provieion of space agreement, decide to aell, assign, or transfer its interest in the property, such transfer shall be ultder and subject to this Provision Of Space Agreement and TENANT's rights hereultder. h) CITY covenants that TENANT, performing the covenant shall peaceable eltjoy the subject premises. c) CITY covenants that CITY is seized of good and sufficient title and interest in the subject premises and has full authority to enter into and exeoute this Agreement. on paying the rent and and quietly have, hold and dl Thie Provision of Space Agreement represents the final agreement of the parties and no agreements or representations, unless incorporated into this Provision Of Space Agreement, shall be binding on any of the parties. The date of this Agreement shall be the day upon which it becomes tully executed by all parties. e) personal hereto. This Agreement shall extend to and bind the heirs, representatives, successors and assigns of the parties f) This Provision of Spaoe Agreement and the performance thereof shall be governed, interpreted, construed and regulated by the laws of the State of Florida. gl TENANT will furnish ~lTY with liability insurance and Workers documentation crior to construetion and ~rovi.ion Of Soace Agreement. the aooro~riste e~lovee CompenSAtion tnBuranc8 throuah the term of this 19. Limitation of City' I Lhbil1tYt The CITY desires to enter into this Provision Of S~ace Aoreement only if in so doing ~he CITY can place a limit on the CITY's 1iabilitv for any cause of action for money domages due to an alleoed breach by the CITY of ;~~~ ~r~~~iO~e~:r S~~~~e~:re:~:n;~m.oofth;;n i~o~~~~~li:!d f~~/~~~ Dollars ($10.000.001. TENANT hereby e~resses its willin~n..s to ,nter into this provision Of S\)ace Aareement with the TENANT'S recovery from the CITY for any damage action for breach of contract to be limited. to a maximum amount of Ten Thousand and 00/10Q Dollars (10.000.001. Accordinaly. and notwithstandina any othe~ 5 rID ill i\\ W ~ 19 &JllilMl(ilr term or condition of this Provision of $:pace Aareement. TENANT hereby agrees that the CITY shall not he liable to TENANT for d4mages in an amount in excess of Ten Thousand and 00/100 Dollars (StO.OOO.OO) for any action or claim for breach of contract arising out of the performance or nongerformance of anv obliaftions 1mooaed I.lp~ the CITY by this Provision of Soace Agreement. Nothing contained in thill paraaraph or elsewhere in thill Provision of Space Asreement is in any wav intended tQ be a waiv,r of the limitation Dlaced u~on the CITY'S liability as set forth in Florida Statutes. Section 768.28. ~ Any controversy or claim for money damages arilling out of 9r relating to thill Provision of Soace Aareement. or the breach hereof. shall be settled by arbitratiQn in accordance with the Commercial lU"bitration Rules of the Amerioan Arbitration Association. and toe arbitration award shall be final and binding uoon the parties hereto and sub~ect to no aooeal, and shall deal with the auestion of the costll of arbitration and all matters related thereto. In that reaard. the Dartie. shall mutually select one arbitrator. but to the extent the Dartie. cannot aaree UDon tha arbitrator. then the American Arbitration Association shall aODoint 2ne. Judgment upon the award rendered may be entered into any court havina ~urisdiction. or aoplication may be made to .uch court for an order of enforcement. Any controversy or claim other than a controversy or claim for monev damages arisinO' out of or relatinq to this PrQvision of SOJ.ce Aar"ement, or the breach hereof. includina any cont~oversv or claim relating to the right of evict\on or eiectment shall be settled bY litiaation and not arbitration. IN WITNESS WHEREOF, the partiee hereto have set their hande and affixed their respective seal. the day and year first above written. gn Signed, sealed and delivered in the presence of: CITY O~ MIAMI BBACH Print Name By, Print Name 6 :(0 STATS OF FLORIDA COUNTY OF DAD! I HEREBY CERTIFY that on thi. day of before me personally appeared CITY OF MIAMI BEACH, who 1B personally known to me produced as identification and who oath. : ~I 00 BJ ~ II , 199_. of the or who has did take an WITNESS my hand and official Beal this __ day of -' 199_ My Commission Expires: NOTARY PUBLIC Print Namel Signed, sealed and delivered in the presence of: TBHANT BBLLSOUTK MOBILITY INC By: Prin Title: Address: Witne611 Print Name: Witness Print Name: Executed on __ day of ____, 1994. .STATB OF FLORIDA COUNTY OF BMWARD The foregoing instrument was acknowledged before me of , 1994, by ae BELLSOUTH MOBILITY INC, a Georgia corporation, who known to me or who has produced identification and who did (did not) take an oath. this ____ day of i. personally as My Commission Expires: NOTARY PUBLIC Print Name: 5428MIAa.MIC rev. 1/31/94 7 All