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HomeMy WebLinkAboutExhibit - AgreementAGREEMENT THIS AGREEMENT, made and entered into this day of 2016, by and between the Grand Condominium Association, Inc., a Florida corporation, hereinafter referred to as "LESSOR" and the City of Miami, Florida, a municipal corporation of the State of Florida, hereinafter referred to as the "CITY." LESSOR and the CITY shall, collectively, be referred to as the "Parties." WITNESSETH: WHEREAS, LESSOR is the Condominium Association which governs and controls the common areas of the condominium known as the Grand Condominium, located at 1717 N. Bayshore Drive, Miami, Florida 33132 (the "Condominium"); and WHEREAS, the CITY has a need to place a maritime radar and associated instruments ("Communication Equipment") on a building in within the city limits, which lies in Miami -Dade County; and WHEREAS, theCommunication Equipment to be installed is part of the "South Florida Maritime Security System," an initiative funded by the Department of Homeland Security; and WHEREAS, LESSOR has space available on the rooftop of the Condominium building (the `Building") for installation of the CITY's Communication Equipment. NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and various other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I TERM OF AGREEMENT Section 1.01 Length of Term and Commencement Date. The term of this Agreement shall commence upon the execution hereof by the CITY and shall extend for a period of five (5) years thereafter, unless earlier terminated pursuant to the provisions of this Agreement (the "Term"). Section 1.02 Termination of Agreement. The CITY shall have the right to terminate this Agreement subject to the conditions set forth below in the event: a. The CITY fails to receive after diligent effort, obtain, and/or maintain any consent, permit or approval of any governmental entity necessary for the CITY to operate its business and/or to construct and use its Communication Equipment as hereinafter defined and as contemplated herein; or b. The CITY no longer desires, as determined in its sole discretion, to use or occupy the rooftop of the Building for operation of its Communication Equipment.. 1 The CITY shall advise LESSOR of its intent to terminate this Agreement by giving LESSOR written notice of termination, setting forth the effective date of such termination. Thereafter, the CITY shall remove all its Communication Equipment and appurtenances installed upon and/or within the Building, shall repair any damage occasioned thereby and shall restore the areas occupied by the CITY's Communication Equipment to the same condition as prior to execution of this Agreement. Upon completion of the foregoing work, the Agreement shall terminate and the Parties shall be released of all further liability arising hereunder, with the exception only of any then existing defaults or matters in existence at the time of such termination which would constitute a default with the passage of time and the giving of any required notice. ARTICLE II RENT Section 2.01 No Annual Gross Rent. The Parties have agreed that no rent or consideration of any kind shall be exchanged in connection with the CITY's installation, use, maintenance, and deinstallation of the Communication Equipment or any other associated structure or improvement which supports the Communication Equipment before, during, or after the end of the Term and/or Terms of this Agreement. Section 2.02 Assessments and Property Taxes. During the Term of this Lease, the CITY shall pay before delinquency all personal property taxes and assessments levied by any governmental authority on the CITY's Communication Equipment and on any Alterations constructed by the CITY. ARTICLE III INSTALLATION OF COMMUNICATION EQUIPMENT Section 3.01 City's Work. The CITY . shall have the right to install in/on the east elevator penthouse and equipment room necessary classified electronic equipment, air conditioner, microwave dishes, antennas and appurtenances as described in Exhibit "A" attached hereto. The CITY shall prepare detailed plans and specifications for the installation of said Communication Equipment and shall submit same to LESSOR for its approval prior to commencing installation thereof, which approval shall not be unreasonably withheld. Section 3.02 Alterations. The CITY shall not install any additional antennas or equipment upon the Building, nor construct any additional improvements not specifically identified by this agreement without LESSOR's prior written consent. In the event either party hereto proposes to conduct any installation, alteration, improvement, or modification of the buildings, structures or equipment on the rooftop of the Building (hereinafter collectively referred to as "Alterations"), the party proposing to conduct said Alterations shall submit to the .other party detailed plans and specifications for the proposed Alterations for the other party's prior review and written approval, which approval shall not be unreasonably withheld. Section 3.03 Construction Liens. In compliance with Florida Statutes 713.10 the CITY covenants and agrees that nothing contained in this Agreement shall be construed as a consent on the part of the 2 LESSOR to subject the estate of the LESSOR to liability under the Construction Lien Law of the State of Florida, it being expressly understood that the LESSOR's estate shall not be subject to such liability. The CITY shall notify any and all contractors and. subcontractors employed by or on behalf of the CITY of this provision of the Agreement. Section 3.04 General Provisions Any and all equipment and appurtenances thereto placed on the rooftop or within the equipment buildings on the rooftop by the CITY or any Alterations to such equipment located on or about the rooftop by the CITY shall be purchased, insured, installed and maintained by the CITY, at the CITY's own cost and expense. The CITY shall obtain at its sole cost and expense all governmental permits and approvals required for such installation and maintenance prior to commencing such work. All work done by the CITY in connection with the performance of the CITY's work and any repairs, maintenance and other work to be perfoinied by the CITY pursuant to this Agreement shall be done only by duly licensed contractors or subcontractors specializing in such work, and shall be performed in a good and workmanlike manner and shall be diligently prosecuted to completion strictly in accordance with governmental permits and approved plans and specifications. ARTICLE IV USE OF ROOFTOP SPACE Section 4.01 Use. The CITY shall have the right to access, use and operate its Communication Equipment on a 24-hour basis during the entire Term of this Agreement. The CITY reserves the right to allow third parties access to the space for maintenance. purposes. Section 4.02 Interference. The electronic equipment installed by the CITY shall be operating in the 5.8 GHz band for point-to-point microwave operations and on 9.375 GHz for the radar applications. The CITY shall be solely responsible for the selection and use of the designated frequencies. The Parties mutually agree not to cause or allow any interference with the other party's communication facilities or equipment or any party's permitted us of the rooftop of the Building. No party shall modify, or permit the modification of, any antenna or associated combiner, multicoupler, cross band couplers or other components of the other party's receive and transmit antenna systems, which shall in any way reduce the "Effective Radiated Power" or "Coverage" of the other party's radio communications system. A party will be .deemed the "interfering party" it if introduces any activity or change, modifications or addition to its communications facilities, equipment or its use of the rooftop of the Building that interferes with another party's existing communication facilities or equipment or any other party's then currently authorized use thereof. The interfering party upon receipt of written notice from any other party using the Building for operation of communications equipment will take all steps necessary at its sole cost to correct and eliminate such interference and to cause its equipment to operate within its assigned frequencies. The interfering party's failure to take immediate action to terminate any such interference shall constitute a default under this Agreement. A default by a third party leasing space on the rooftop of the Building from LESSOR shall constitute a default by LESSOR hereunder. Prior to installation of any equipment on the rooftop of the Building utilizing a frequency other than identified in this document, the party proposing said installation 3 shall obtain at its sole cost and expense an intermodulation study performed by a licensed engineer to determine the compatibility of equipment to be installed with the systems then existing on the rooftop of the Building. Copies of said intermodulation studies shall be provided to all parties then maintaining the equipment of the Rooftop of the Building prior to installation of the equipment. In the event said intermodulation study indicated that said equipment will interfere or is likely to interfere with any of the equipment identified herein then said party shall not proceed with said installation. Section 4.03 Governmental Regulations. The Parties hereto shall each comply with all ordinances, laws, statutes and regulations promulgated thereunder of all county, municipal, state, federal and other applicable governmental authorities, now in force, or which may hereafter be in force, pertaining to their use of the rooftop of the Building or the Condominium generally, ARTICLE V REPAIRS AND MAINTENANCE Section 5.01 Building. LESSOR shall maintain the Building in good repair and condition at all times during the Term of this Agreement, at LESSOR's sole . cost and expense. Notwithstanding the foregoing, any and all damages to the Building caused by the CITY shall be repaired by the CITY at its sole cost and expense. Section 5.02 City's Equipment and Personal Property. The CITY shall, at its sole cost and expense, maintain its Communication Equipment and appurtenances located on or about the rooftop of the Building in good repair and condition throughout the term of this Agreement. The CITY shall also maintain and repair the emergency generator at its sole cost and expense. ARTICLE VI INSURANCE Section 6.01 Liability Insurance. The CITY shall, during the entire Term hereof, provide LESSOR with a certificate evidencing self-insurance coverage for comprehensive general liability in the amount of $200,000 per person and $300,000 per incident or occurrence. In the event the Legislature should change the CITY's exposure by statute above or below the sums insured against, the CITY shall provide insurance to the extent of that exposure. Section 6.02 Personal Property. The CITY's Communication Equipment and personal property placed or located on the rooftop of the Building shall be kept there at the sole risk of the CITY. Notwithstanding the foregoing, LESSOR shall take all reasonable measures to restrict access to the rooftop of the Building and to prohibit unauthorized access to the City's Communication equipment. ARTICLE VII DAMAGE OR DESTRUCTION OF THE TOWER AND/OR THE EQUIPMENT BUILDING Section 7.01 Damage or Destruction by Fire, War or Act of God. 4 In the event the Building shall be destroyed or damaged by fire, windstorm or other casualty during the term of this Agreement, LESSOR shall restore same to the pre - incident condition. In the event that such casualty causes damage to the Building or the Building's systems such that the CITY is unable to access or operate its Communication Equipment, LESSOR shall take such measures as may be reasonably required to assist the CITY in restoring its Communications Equipment to an operational condition. In the event that it is determined that the damaged areas of the Building shall not be restored, LESSOR shall immediately thereafter provide the CITY with written notice of said determination whereupon the CITY shall have the right, at its option, to terminate this Agreement. ARTICLE VIII UTILITIES The calculated electrical load of the CITY's equipment is less than 3.5 KWH/day, or approximately 90 KWH per month. These minimal electrical. load costs are included in the lease amount indicated in section 2.01. ARTICLE IX DEFAULT Section 9.01 Default. In the event either party hereto shall fail to perform or observe any of the terms, covenants or conditions of this Agreement on said party's part to be performed, the same shall constitute a default hereunder. In the event said default has not been fully and completely cured within thirty (30) days of written notice of said default by the non - defaulting party, or in the event such default is not reasonably capable of being cured within a thirty (30) day period, if the defaulting party does not immediately upon receipt of notice of such default commence to cure same and thereafter proceed with all due diligence to complete the cure of such default within a reasonable period of time under the circumstances, the non -defaulting party shall have right to seek all remedies available at law or in equity for such default, including the right of specific performance. Section 9.02 Waiver, Accord and Satisfaction. The waiver by either party of any default by the other party of any term, condition or covenant herein contained shall not be a waiver of such term, condition or covenant, or any subsequent default of the same or any other term, condition or covenant herein contained. The written consent or approval by LESSOR to or of any act by the CITY requiring LESSOR's consent or approval shall not be deemed to waive or render unnecessary LESSOR's consent to or approval of any subsequent similar act by the CITY. Section 9.03 Enforcement Costs. In the event any action, suit or proceeding is commenced with respect to the interpretation or enforcement of this Agreement, the each party therein shall be responsible for all its own costs, expenses and fees, including, without limitations, attorney's fees, expended or incurred by such party in connection therewith, including any such costs, expenses and fees upon appeal and in post judgment proceedings. ARTICLE X ACCESS 5 The CITY shall have the right to enter upon the Condominium at all times in order to gain access to its Communication Equipment. LESSOR shall provide the CITY with 24-hour access to the Rooftop of the Building and to the CITY's Communication Equipment. ARTICLE XI [This section has been intentionally left blank.] ARTICLE XII CONDEMNATION If all or part of the Condominium shall be taken or condemned for public or quasi -public use and as a result the CITY's ability to access and/or operate its Communication Equipment is prohibited or materially restricted, either party shall have the right to terminate this Agreement upon thirty (30) days prior written notice to the other party. Any such termination shall be effective as of the date title is vested in the condemning authority. Upon the effective date of such termination, the Parties shall be relieved of all further obligations arising subsequent to the date of termination, with the exception only of any then existing defaults, or matters in existence at the time of such termination which would constitute a default with the passage of time and the giving of. any required notice. ARTICLE XIII MISCELLANEOUS PROVISIONS Section 13.01 Non -Discrimination LESSOR represents and warrants to the CITY that it will comply with §18-188, §18-189 and §18-190 of the City of Miami Code incorporated herein. LESSOR hereby represents and warrants that it shall not engage in discriminatory practices and shall not discriminate on account of race, national origin, ancestry, color, sex, religion, age, handicap, familial status, marital status or sexual orientation. Section 13.02 Public Entity Crimes. As provided in Florida Statutes §287.132-133, LESSOR hereby certifies that, that to the best of its knowledge, LESSOR, its affiliates, agents, contractors, employees or' suppliers who will perform hereunder, have not been placed on the convicted vendor list maintained by the State of Florida Department of Management Services within the thirty- six (36) month period immediately preceding the Commencement Date of the Term of this Agreement. This certification is required pursuant to Florida Statute §287.133(3)(a). Section 13.03 Entire Agreement. This Agreement and any Exhibits attached hereto constitute all agreements, conditions and understandings between the CITY and LESSOR concerning the installation of Communication Equipment at the Grand Condominium. All representations, either oral or written shall be deemed to be merged into this Agreement. No alteration, modification, waiver, change or addition to this Agreement shall be binding upon the CITY or LESSOR unless reduced to writing and signed by them. Section 13.04 Notices. 6 Any consents, approvals and permissions by the parties hereto shall be effective and valid only if in writing and any notice by either party to the other shall be in writing and mailed prepaid by certified mail return receipt requested, addressed: (a) If to LESSOR at: Grand Condominium Association Board of Directors c/o Property Manager 1717 N. Bayshore Drive Miami, Florida 33132 (b) If to the CITY at: City of Miami Department of Real Estate and Asset Management Attn: Daniel Rotenberg, Director 444 S.W. 2nd Avenue, 3rd Floor Miami, Florida 33130 With copies to: . And: City of Miami Department of Fire Rescue Attn: Technical Services Division 444 S.W. 2nd Avenue, 10th Floor Miami, Florida 33130 City of Miami Office of the City Attorney Attn: Victoria Mendez, City Attorney 444 S.W. 2nd Avenue, 9th Floor Miami, Florida 33130 Or such address as the CITY or LESSOR, respectively, may designate in writing. All notices given hereunder shall be effective and deemed to have been duly given only upon receipt by the party to which notice is being given, said receipt being deemed to have occurred upon such date as the postal authorities shall show the notice to have been delivered, refused, or undeliverable, as evidenced by the return receipt. Section 13.05 Severability. If any term of this Agreement, or the application thereof to any person or circumstances, shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application of such term to persons or circumstances other than those as to which it is invalid and enforceable shall not be affected thereby, and each term of this Agreement, shall be valid and enforceable to the fullest extent permitted by law. Section 13.06 Captions. 7 The captions in this Agreement are included for convenience only and shall not be taken into consideration in any construction or interpretations of this Agreement or any of its provisions. Section 13.07 Recording. Th.e CITY shall not record this Agreement, or any memorandum or short form thereof, without the written consent and joinder of LESSOR. Section 13.08 Waiver of Jury Trial. The parties hereto waive trial by jury in connection with proceedings or counterclaims brought by either of the parties hereto against the other, in connection with this Agreement. Section 13.09 Governing Law. This Agreement shall be governed by, constructed and enforced in accordance with the laws of the State of Florida and venue shall be in Miami -Dade County. Section 13.10 Time of Essence. Time is of the essence with respect to the performance of every provision of this Agreement in which time of performance is a factor. Section 13.11 Benefit and Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns. 8 IN WITNESS WHEREOF, the CITY and LESSOR have executed this Agreement, or have caused the same to be executed by their duty -authorized representatives as of the day and year first above written. CITY OF MIAMI, a Florida municipal corporation Attest: By: Todd B. Hannon Daniel J. Alfonso City Clerk City Manager Approved as to legal form Approved as to insurance and correctness: requirements: By: By: Victoria Mendez Ann -Marie Sharpe City Attorney Risk Management Director WITNESSES: GRAND CONDOMINIUM ASSOCIATION, INC., a Florida non-profit corporation By: By: Signature Print Name Print Name Title By: Signature Print Name CORPORATE SEAL 9 STATE OF FLORIDA COUNTY OF MIAMI-DADE This foregoing instrument was acknowledged before me this day of , 2016, by as President of the Grand Condominium Association, Inc. On behalf of the corporation, who is personally known to me or has produced as identification. (SEAL) Notary Public: Print Name: My Commission Expires: 10 EXHIBIT A DESCRIPTION OF THE CITY'S WORK A helicopter shall hoist a steel mast from the ground to the roof of the Grand Condominium. Said steel mast shall be attached to the inside wall of the roof structure. In addition, an equipment cabinet shall be located next to the mast. All work associated with the CITY's installation of this Communication Equipment should be completed in, approximately, seven (7) working days, weather permitting.