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2009-07RESOLUTION NO. 2009-07 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA AUTHORIZING THE CITY MANAGER TO EXECUTE AND OTHERWISE ENTER INTO THAT CERTAIN LEASE AGREEMENT BY AND BETWEEN THE SOUTH TOWER AT THE POINT CONDOMINIUM ASSOCIATION AND THE CITY OF AVENTURA TO HOUSE POLICE RADIO EQUIPMENT; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS RESOLUTION; AND PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, THAT: Section 1. The City Commission hereby authorizes the City Manager to execute and otherwise enter into that certain Lease Agreement, a copy of which is attached hereto, by and between The South Tower at the Point Condominium Association and the City of Aventura to house police radio equipment. Section 2. The City Manager is hereby authorized to do all things necessary to carry out the aims of this Resolution. Section 3. This Resolution shall become effective immediately upon its adoption. The foregoing Resolution was offered by Vice Mayor Joel, who moved its adoption. The motion was seconded by Commissioner Holzberg, and upon being put to a vote, the vote was as follows: Commissioner Zev Auerbach Commissioner Bob Diamond Commissioner Teri Holzberg Commissioner Michael Stern Commissioner Luz Urbaez Weinberg Vice Mayor Billy Joel Mayor Susan Gottlieb absent from the room Resolution No. 2009- u7 Page 2 PASSED AND ADOPTED this 13th day of January, 2009. ~` USAN GOTTLIEB, MAYOR ATTE ~E ESA M. SOR , MM CIT CLERK APPROVED AS TO LEGAL SUFFICIENCY: y r ~ 1 ~~~ CITY ATTORNEY EMS/tms LEASE AGREEMENT This LEASE AGREEMENT is made this day of , 200_ between the SOUTH TOWER AT THE POINT CONDOMINIUM ASSOCIATION, INC., a Florida non- profit corporation, whose address is 21055 Yacht Club Drive, Aventura, Florida 33180 (hereinafter referred to as LESSOR), and the CITY OF AVENTURA, a Florida municipality, whose address is 19200 West Country Club Dr., Aventura, Florida 33180 (hereinafter referred to as TENANT). 1. LESSOR is the owner of certain real property and the building located at 21055 Yacht Club Drive, Aventura, Florida 33180 (the "Building"). LESSOR hereby leases to TENANT that area consisting of approximately fifty (50) square feet of space within the Building (hereinafter the "Building Space") and certain positions on the roof of the Building (hereinafter the "Rooftop Space"), for the installation of radio facilities, as more particularly described in Paragraph 1 A herein below and as shown on Exhibit" A" attached hereto and made a part hereof. The Building Space and the Rooftop Space are hereinafter collectively referred to as the "Lease Premises." The easement over the area described as the Lease Premises shall be non-exclusive. Further, TENANT, its agents, employees and contractors shall have the non- exclusive right to ingress and egress to the Building and Rooftop Space twenty-four (24) hours a day, seven (7) days a week, subject to reasonable rules and regulations adopted by the LESSOR, for the installation, maintenance, and operation of the following radio facilities: A. Radio Facilities, including equipment and antennas, to be installed on the Building, as more particularly shown on Exhibit "A" attached hereto. The radio facilities include, but are not limited to the following: (1) Equipment located within the Building Space; (2) Cable or transmission lines shall run between the Rooftop Space and the radio equipment located within the Building Space; and (3) Antennas and equipment on the Rooftop Space. The antennas may be mounted at a sufficient height on the Rooftop Space now or in the future so that the signals transmitted and received thereby will not be impeded by the Building or any other structures mounted thereon. B. TENANT may make such alterations ~or modifications to the Building Space and Rooftop Space as are necessary for the installation and operation of its radio facilities, subject to the prior approval of LESSOR, which approval shall not be unreasonably withheld or delayed. Prior to commencement of any alteration, TENANT shall submit plans of the proposed alteration to LESSOR for its approval. LESSOR shall have thirty (30) days after receipt of Tenant's plans, to review and approve same. Failure on the part of the LESSOR to notify TENANT within the thirty (30) day period shall constitute a wavier of LESSOR'S rights hereunder and the plans shall be deemed approved. Any damage to the Building and Rooftop Space as a result of such alterations or modification shall be restored by TENANT to the original condition at TENANT's sole expense. Said alterations made by Tenant shall be performed in a workmanlike manner. Upon the termination of this Lease, TENANT shall remove all of its equipment from the Building and return building to it original condition. C. TENANT agrees to install radio equipment of a type and frequency which will not cause technical interference problems with other equipment located in the Building and operate the Lessee Facilities in compliance with all FCC requirements including those prohibiting interference to communications facilities of existing Unit Owners and tenants of the Building at the time of such installation. TENANT also agrees to install equipment that does not physically interfere with other equipment installed on the roof. In the event TENANTS equipment causes material interference, TENANT will take all steps necessary to correct and eliminate such interference at its sole cost. LESSOR agrees not to allow any Unit Owner's or tenant's use of the roof of the Building or permit additions and/or modifications to any current Unit Owner's or tenant's use of the roof to cause interference with or cause the improper operation of TENANT'S facilities and equipment. LESSOR further agrees not to lease any portion of the roof or the Building for placement of any other radio or cellular communication facilities which may interfere with TENANT'S use of the Lease Premises. D. LESSOR shall cooperate with TENANT in TENANT'S effort to obtain utility services for the operation of its facilities by signing such documents or easements as may be required by utility companies. LESSOR shall furnish the Lease Premises with electric service sufficient for the operation of TENANT'S facilities and equipment at TENANT'S sole cost and expense. Any change in existing electrical facilities required to meet the needs of TENANT' S equipment shall be made with LESSOR'S prior approval and at TENANT'S expense. Any special electrical lines, conduit, circuit breaker switches or other electrical facilities .located within the Building shall be installed by a qualified electrical contractor of TENANT'S choice and at TENANT'S sole expense. All contractors must be approved by the LESSOR. The LESSOR must be provided a certificate of insurance listing the LESSOR as an additional insured on the General Liability and workers comp policies along with a copy of the contractor's license. The contractor is responsible pull all necessary permits. E. TENANT agrees that all finish work and any construction expense related to the installation of TENANT'S radio facilities will be at TENANT'S expense. TENANT further agrees that any damage which occurs as a result of the installation or maintenance of the radio facilities shall be repaired at TENANT' S sole cost and expense. 2. This Lease Agreement shall be effective as of the date of execution by both parties ("Effective Date"); provided, however, the initial term of this Lease Agreement (the "Initial Term") is Five (5) years, commencing thirty (30) days from the date this Agreement is approved by the City Commission ("Commencement Date"). TENANT shall pay LESSOR, an annual rental of Twelve Hundred and 00/100 Dollars ($1,200.00), plus applicable sales tax, if any, to be paid in equal monthly installments of One Hundred and 00/100 DOLLARS ($100.00) to be paid monthly on or before the first (1St) day of each month, in advance, to the LESSOR (the "Rent"). TENANT shall have the option to renew this Lease Agreement for two (2) additional terms (each a "Renewal Term") of Five (5) years each, unless either party provides notice to the other party of its intention not to renew not less than ninety (90) days prior to the expiration of the Initial Term or any Renewal Term. The Rent for the Rental Terms shall remain the same unless otherwise agreed to in writing by the parties. If TENANT fails to make payment, as required herein, within fifteen (15) calendar days of the due date for any payment, LESSOR, after an additional five (5) day cure period, 'may terminate this Agreement. 3. LESSOR also grants to TENANT the right to survey the Lease Premises and the legal description on the survey shall then become Exhibit "B" to this Lease, which shall be attached hereto and made a part hereof, and shall control in the event of discrepancies between it and Exhibit "A." LESSOR grants TENANT the right to take measurements, make calculations and to note other structures, setbacks, uses, or other information as deemed by TENANT to be relevant and pertinent as such information relates to the Lease Premises. The cost of such survey work shall be borne by TENANT. 4. TENANT shall use the Building Space and Rooftop Space for the purpose of constructing, maintaining and operating a Radio Communications Facility and uses incidental thereto, consisting of the mounting of antennas on the Rooftop Space and the placement of equipment in the Building Space. All improvements shall be at TENANT'S expense. TENANT will maintain the Rooftop Space and the Building Space in a reasonable condition. It is understood and agreed that TENANT'S ability to use the Rooftop Space and Building Space is contingent upon its obtaining, after the execution date of this Lease all of the certificates, permits and other approvals that may be required by any federal, state or local authorities. LESSOR shall cooperate with TENANT in its effort to obtain such approvals and shall take no action which would adversely affect the status of the Rooftop Space and Building Space with respect to the proposed use thereof by TENANT. In the 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 is canceled, expires, lapses or is otherwise withdrawn or terminated by governmental authority so that TENANT, in its sole discretion, will be unable to use the Building Space and Rooftop Space for its intended purposes, TENANT shall have the right to terminate this Lease. Notice of the TENANT'S exercise of its right to terminate shall be given to LESSOR in writing by certified mail, return receipt requested, and shall be effective upon receipt of such notice by the LESSOR as evidenced by the return receipt. Any material damage or interference which has resulted from constructing, maintaining and operating the radio communications facility, transmittal of radio signals, or any use incidental thereto, including but not limited to airwave interference, damage to the telephone circuitry, damage to the electrical wiring, damage to any antenna, interference with any Unit Owner's telephone, satellite or television reception, damage to the Rooftop, piping or cables, shall be corrected at the sole expense of the TENANT. Upon being given written notice by LESSOR, TENANT shall have thirty (30) calendar days to commence repairs and/or correct any damage or interference as outlined herein. Should TENANT fail to commence repairs and/or correct the interference within the time permitted, same shall constitute a default under the Lease Agreement. If TENANT fails to cure such default within thirty (30) calendar days after expiration of the cure period above, LESSOR may terminate this Agreement. 5. Subject to the provisions and monetary limitations of Section 768.28 (5), Florida Statutes, which limitations shall be applicable regardless of whether such provisions would otherwise apply, and to the extent permitted. by law:; TENANT shall indemnify and hold LESSOR harmless against any claims of liability or loss from personal injury, property damage or otherwise, including any reasonable attorneys' fees and costs incurred by LESSOR, resulting from or arising out of the use and occupancy of the Building Space and Rooftop Space by the TENANT, excepting, however, such claims or damages as may be due to or caused by the willfulness conduct or gross negligent acts of the LESSOR, or its servants, agents, employees, contractors, or Unit Owners, tenants or occupants of the Building. If TENANT fails to fulfill its obligations hereunder within sixty (60) calendar days after written notice, LESSOR may terminate this Agreement. The provision hereof shall survive expiration or termination of this Agreement. 6. LESSOR agrees that TENANT may self-insure against any loss or damage which could be covered by a comprehensive general public liability insurance policy. LESSOR and TENANT agree that the insurance policy limits currently held by TENANT under the Florida Municipal Insurance Trust (the "Trust"), as evidenced in Exhibit "C" attached hereto, shall be maintained, at TENANT' S expense, during the term of this Agreement. 7. TENANT shall be responsible for making any necessary returns for and paying any and all Building taxes separately levied or assessed against its facilities on the Building. 8. TENANTS upon expiration of the term of this Agreement or the earlier termination hereof, shall, by the end of the tenancy herein, remove its equipment and facilities from the Building Space and Rooftop Space and return building to it original condition. 9. LESSOR covenants that TENANT shall peaceably and quietly have, hold and enjoy the Lease Premises. 10. LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the real property and Building and has full authority to enter into and execute this Lease. LESSOR further covenants and represents to TENANT that it has obtained all approvals required by the Declaration of Condominium, and all amendments thereto, Articles of Incorporation, Bylaws and Rules and Regulations of South Tower at the Point Condominium Association, Inc., and will provide TENANT with a duly executed and authorized Resolution of its Board setting forth these approvals. LESSOR further covenants that there are no liens, judgments, restrictions, or impediments to title of the Building and lease of the Lease Premises to TENANT. 11. LESSOR represents and warrants that the Building is in material compliance with all laws, ordinances, notices, orders, rules, regulations and requirements of any and all federal, state, or municipal governments or the appropriate departments, commissions, boards and offices thereof; as well as any and all notices, orders, rules and regulations of the National Board of Fire Underwriters, or any other body exercising similar functions relating to all or part of the Building. 12. This Lease and the performance thereof shall be governed, interpreted, construed and regulated by the laws of the State of Florida. 13. This Lease may not be sold, assigned or transferred at any time without the written consent of the LESSOR, which consent may be withheld within LESSOR'S sole and absolute discretion. TENANT may not sublease this Lease, except as otherwise provided herein. 14. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested, addressed as follows (or any other address that the party to be notified may have designated to the sender by like notice): To LESSOR: South Tower at the Point Condominium Association, Inc., 21055 Yacht Club Drive, Aventura, Florida 33180 Attn: President of Board; To TENANT: City of Aventura 19200 West Country Club Dr:, Aventura, Florida 33180, Attn: Mr. Eric M. Soroka, City Manager. 15. This Lease shall extend to and bind the heirs, personal representatives, successors and assigns of the parties hereto. 16. At LESSOR'S option, this Lease Agreement shall be subordinate to any mortgage by LESSOR which from time to time may encumber all or part of the Building, provided, however, every such mortgage shall recognize the validity of this Lease in the event of a foreclosure of LESSOR'S interest and also TENANT'S right to remain in occupancy of and have access to the Lease Premises. TENANT shall execute whatever instruments may reasonably be required to evidence this subordination clause. In the event the Building is encumbered by a mortgage, the LESSOR, no -later than thirty (30) days after this Lease is executed shall have obtained and furnished to TENANT aNon- Disturbance instrument in recordable form for each such mortgage. 17. If the whole of the Building or such portion thereof as will make the Building unusable for the purposes herein leased, are condemned by any legally constituted authority for any public use or purpose, then in either of said events the term hereby granted shall cease from time to time when possession thereof is taken by public authorities, and rental shall be accounted for as between LESSOR and TENANT as of that date. Any lesser condemnation shall in no way affect the respective rights and obligations of LESSOR and TENANT hereunder. Nothing in this provision shall be construed to limit or affect TENANT'S right to an award of compensation of any eminent domain proceeding for the taking of TENANT' S leasehold interest hereunder. 18. If LESSOR needs to repair or replace the roof for any reason, TENANT shall, upon LESSOR' S demand, move and re-locate any equipment therein at its sole expense. 19. In connection with any litigation arising out of this Lease, the prevailing party, whether LESSOR or TENANT, shall be entitled to recover all reasonable costs incurred including reasonable attorney's fees for services rendered in connection with any enforcement or breach of contract, including appellate proceedings and post judgment proceedings. The provisions hereof shall survive expiration or termination of this Agreement. In accordance with Florida Law, the following statement is hereby made: RADON GAS: Radon is a natural 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 heath unit. 20. LESSOR shall hold TENANT harmless from and indemnify TENANT against and from any damage, loss, expenses or liability resulting from the discovery by any person of hazardous substances generated, stored, disposed of, or transported to or over the Building, as long as such substance was not stored, disposed of, or transported to or over the Building by TENANT, its agents, contractors, employees, or invitees. TENANT shall hold LESSOR harmless from and indemnify LESSOR against and from any damage, loss, expenses or liability resulting from the installation, constructing, maintaining and operating the radio communications facility and any use incidental thereto. LESSOR acknowledges that TENANT is a municipal corporation, that it does not waive sovereign immunity, and that the monetary limits of liability under §768.28 F.S. apply to each of its indemnification obligations hereunder under this Lease Agreement regardless of whether said monetary limits are otherwise applicable. 21. LESSOR shall permit TENANT to utilize LESSOR'S existing generator on the Building to provide back-up power to the TENANT'S Facilities, provided that the additional load does not exceed the capacity of the existing generator as determined by an electrical engineer. All engineering, material and labor costs needed to connect the equipment to the generator will be paid for by the TENANT. 22. This Lease shall be executed in three (3) counterparts, each of which shall be deemed an original, and such counterparts shall constitute but one and the same Lease. LESSOR: SOUTH TOWER AT THE POINT CONDOMINIUM ASSOCIATION, INC., a Florida non-profit corporates .C.~- By: Print I'~lame: S~~ ~`r~e ~~ ~~ n: Title: .,s,~ n...... ~~ ~.-~- TENANT: CITY OF AVENTURA, FLORIDA By: Print Name: Title: Attest: City Clerk