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HomeMy WebLinkAboutIII (F) Acceptance and Authorization for Mayor and City Clerk to execute Tower Lease Agreement with WXXL Radio to use their tower for Police Radio Service t AGENDA 6-6-95 I Item III F / "CENTER OF GOOD LIVING -PRIDE OF WEST ORANGE" •-^ '- °n°,.. lvivr., Ocoee r/ S.SCOTT VANDERGRIFT 0 �y l COMMISSIONERS � ►;; d'ik. CITY OF OCOEE JOHNSON AU 0 150 N.LAKESHORE DRIVE SCOTT A.GLASS co ..i? OCOEE,FLORIDA 34761-2258 'lJIM GLEASON 'J, (407)656-2322 CITY MANAGER 41.40 °f GOOV ELLIS SHAPIRO MEMORANDUM TO: The Honorable Mayor and Board of City Commissioners FROM: Ellis Shapiro, City Manager DATE: May 30, 1995 RE: TOWER LEASE WITH WXXL Attached hereto is the Lease Agreement with WXXL radio to utilize their tower in Winter Garden for our Police radio service. This Agreement has been reviewed by the Police Department, the City Attorney, and my office. We recommend approval so that radio service can continue until the 800 MHz system is available to us. Respectfully Submitted, ES3:fdg:171 40,— Attachment TOWER LEASE AGREEMENT THIS LEASE, made this day of MAY, 1995, between J. J. TAYLOR COMPANIES, INC., 11780 U.S. Highway #1 Suite 204, North Palm Beach, FL 33408, hereinafter referred to as "Lessor", and the City of Ocoee, a Florida municipal corporation, whose mailing address is 150 N. Lakeshore Drive, Ocoee, FL 34761, hereinafter referred to as "Lessee". 1. Premises: Lessor hereby grants permission to Lessee to install, maintain, operate and remove communications equipment ("Equipment"), defined as: LESSOR WILL PROVIDE the CITY OF OCOEE, a Florida municipal corporation, TOWER SPACE LOCATED AT 164' ON THE 435 W. Story Rd. Winter Garden (Orange County), FL TOWER (829'). OPERATING FREQUENCIES (SEE EXHIBIT A). Tower coordinates: latitude 28-33-31 - longitude 81-35-38. Unless otherwise notified by Lessor, Lessee will coordinate all activities on the premises with the Chief Engineer at radio station WXXL-FM, 337 S. Northlake Blvd., Suite# 1024, Altamonte Springs, FL 32701. NOTE: Antenna windload specs must be supplied to Lessor prior to installation. 2. Terms and Termination: This lease shall become effective July 1, 1995 ("the Commencement Date") and shall continue in effect for a term of one (1) year. On termination of the Lease in accordance with any of its terms, Lessee shall, at its expense, within thirty (30) days, remove its antennas, equipment, wires and appliances from Lessor's Premises and repair any and all damage caused and restore the Premises to the condition existing before Lessee's tenancy, reasonable use and wear and tear and damage by the elements excepted. 3. Rental of Premises: Lessee shall pay to Lessor for the use of the Premises described hereunder, a monthly lease fee as follows: Tower Space $203.00 Power Fee $ 30.00 Total $233.00 First and last month is payable in advance, commencing on the commencement date of the lease as provided for in Paragraph 2. 4. Renewal Options: In addition to the initial term hereof, Lessee shall have the option to extend this Lease for four (4) additional one (1) year terms by giving written notice of its intention to do so at least six (6) months prior to the end of the then current term. The monthly rental will also increase at the end of each new year by five percent (5%). 5. Holdover: Any holding over after the expiration of the term hereof, shall be construed as a tenancy from month to month, and such tenancy will be herein provided at twice the monthly rental as or in effect during the last portion of the term hereof, but otherwise upon the same term and conditions herein specified, as far as applicable, and Lessor may at ifs option terminate the lease at will. 6. Assignment and Sublease: Lessee shall have the right to assign this Lease or to sublet without Lessor's consent, to any parent, subsidiary or affiliate of Lessee or to any person, firm or corporation which shall be controlled by, under the control of, or under common control with Lessee, or any corporation into which Lessee may be merged or consolidated or which purchases all or substantially all of the assets of Lessee. Notwithstanding the foregoing, Lessee shall remain liable hereunder just as fully as if such assignment or subletting had not been made, unless the Lessor shall give its consent in writing to release the Lessee of its liabilities and/or obligations hereunder; such consent shall not be unreasonably withheld. Nothing herein shall preclude the sale by Lessor of all or any portion of its property which includes the Leased Premises providing that this Lease shall be binding upon and insure to the benefit of Lessor's successors and/or assigns. 7. Compliance with Statutes and Regulations: The tower transmitter building, antennas, wire and appliances of Lessor, shall be erected and maintained in accordance with the requirements and specifications of the safety codes of the State of Florida, or any amendments or revisions thereof, and in compliance with any rules or orders now in effect, or that hereafter may be issued by the Federal Communications Commission. 8. Attachments to Premises by Lessee: Lessee shall, at its own expense, install and maintain any Equipment on or attached to the Premises in a safe condition and in good repair, and in a manner suitable to Lessor so as not to conflict with the use of facilities thereon or to be placed thereon. 9. Rights to Equipment: Any and all machinery, equipment and trade fixtures installed by Lessee shall remain personality notwithstanding the fact that it may be affixed or attached to the realty, and shall, during the term of this Lease or any extension of renewal thereof, belong to and be removable by Lessee. Lessee may, at its election, remove said machinery, equipment and trade fixtures on or before the expiration of the term of this Lease provided that Lessee shall repair any damage caused by said removal, normal wear and tear excluded. 2 10. Interference: Lessor and Lessee agree to cooperate and take all reasonable steps to relieve and correct any interference to either's broadcasting activities on the Premises. As used herein and throughout the Lease, interference with a broadcasting activity shall mean: a. A condition existing which constitutes interference within the meaning of the provisions of the recommended practices of the Electronics Industries Association(EIA) and the rules and regulations of the Federal Communications Commission (FCC) then in effect. b. There is a material impairment of the quality of either sound or picture signals on a broadcasting activity of either party hereto in any material portion of the protected service area of such activity as such area is or may be defined by the FCC at any hour during the period of operation of such activity, as compared with that which would be obtained if no other broadcasters were broadcasting from the tower or had any equipment on the tower. In the case of any interference caused by the failure of other party's installations to comply with the recommended practices of EIA or the rules and regulations of the FCC, the party whose facility causes such interference shall be required to remove such interference regardless of which installation was first constructed. Following the aforesaid initial installations, and thereafter during the term of the Lease, any interference caused by change in facilities or in the manner of operations thereof, or by the operations of either party, shall be eliminated at the sole cost and expense of the party causing such interference. If, in order to correct interference either Lessor or Lessee shall desire, at its own expense, to attach protective devices to the equipment of the other party, said other party will consent thereto if this will result in no interference to its broadcasting activities or equipment or any degradation of the signal quality transmitted by such other party. 11. Interruption of Service: Lessor shall not be liable to Lessee for any interference with the operation of the equipment, wires and appliances of Lessee arising in any manner from the Premises hereunder, unless due to negligence of Lessor, its employees, agents or invitees. Lessee shall not be liable to Lessor or other Lessees, or other Lessees' businesses, unless due to the negligence of Lessee, its employees, agents or licensees. 3 12. Maintenance and Operation of Premises: Lessor reserves to itself, its successors and assigns, the right to maintain the Premises and to operate its facilities thereon in such manner as will best enable it to fulfill its own service requirements, but in accordance with the specifications herein mentioned including, but not limited to the requirements of the FCC and all other public authorities with jurisdiction over Lessor. Lessor shall, at its own expense, subject to reasonable wear and tear, keep all buildings and other improvements occupied by it on the Premises in good repair, operating condition and working order, and shall make such restoration or repair required. Lessee shall at its own expense, subject to reasonable wear and tear, keep all of its leased space in good repair, operating condition and working order. Lessor shall be responsible for maintenance of the existing roadway leading to its tower and transmission building, at its own expense. 13. Right of Access: Lessor agrees that Lessee shall have free access to Lessor's property, antenna site and/or equipment room for the purpose of installing, maintaining and operating Lessee's Equipment, and Lessor further agrees to give Lessee free ingress and egress to the premises during the continuation of the Lease and any renewals thereof. Lessor shall furnish Lessee with necessary keys for the purpose of ingress and egress to the Premises. It is agreed, however, that only authorized engineers, employees, contractors, subcontractors, and agents of Lessee, FCC Inspectors, or persons under their direct supervision, will be permitted to enter the Premises. Lessee further agrees to notify WXXL's Chief Engineer prior to authorizing any person access to WXXL's tower. 14. Taxes: Lessee agrees to pay when due all taxes levied upon the Equipment and upon any fixtures or improvements which Lessee places in or adds to the Premises. Lessee shall pay that portion of the real estate taxes'attributable to Lessee's improvements only. 15. Alterations: No alterations, or additions, or improvements of any character shall be made in or to the Site by the Lessee, without the written consent of Lessor first having been secured, which consent shall not be unreasonably withheld. All permanent alterations, additions or improvements so made shall be the property of Lessor and shall remain upon and be surrendered with the Site upon termination of this Lease, unless otherwise provided in such consent. All work done in accordance with this Section 15 shall be performed in a good and workmanlike manner without damage to the Premises, and in accordance with all applicable laws, orders and regulations. Nothing provided herein shall prevent Lessee from installing, repairing or replacing its transmission or other equipment described in this Lease (which shall remain the property of the Lessee), and the same may be removed any time before the termination of this Lease if the Site shall not be damaged by such removal, or provided that Lessee repairs any such damage to Lessor's reasonable satisfaction. 4 16. Damage or Destruction: (a) Lessor will not be liable to Lessee for any loss or damage sustained by Lessee as a result of loss, damage or destruction of the Tower, the transmitter building and/or the Equipment, regardless of cause, except as provided in Section 16. (b) If the Tower, the transmitter building and/or the Equipment are partially damaged by fire, windstorm or other casualty not caused by Lessor or Lessee, this Lease shall remain in full force and effect and the damage to the Equipment shall be repaired by the Lessee and except as set forth in Section 16(c), Lessor shall repair any damage to the Tower and the transmitter building not caused by the negligence or willful misconduct of Lessee or its agents, employees or contractors. (c) If the Site is destroyed or made unfit for use by fire, windstorm or other casualty and such destruction cannot reasonably be repaired within one hundred eighty (180) days from the happening of such destruction, Lessee may elect to terminate this Lease as of the date when the Site is so made unfit for use, by written notice to the other party within sixty(60) days after the occurrence of said destruction. (d) During any period in which the Site and/or the Equipment are damaged by fire, windstorm or other casualty with the result that Lessee is unable to broadcast its signal from the Tower, Lessee shall be entitled to an abatement of rent for any period exceeding sixty(60) days. 17. Eminent Domain: If all or any part of the Site shall be taken or condemned for public or quasi-public use rendering the Site substantially unfit for Lessee's use, this Lease shall, at the option of the Lessor or Lessee, terminate. All compensation awards upon such condemnation or taking shall go to Lessor except damages to Lessee's business, and Lessee shall have no other claim thereto, except for damages to Lessee's business, and Lessee shall have no other claim thereto, except for damages to Lessee's business, and Lessee hereby irrevocably assigns and transfers to Lessor any right to compensation or damages to which Lessee may become entitled during the term hereof by reason of the condemnation of all, or any part, of the Premises. 18. Indemnification: (a) Lessor assumes all risk of and responsibility for, and agrees to indemnify and save harmless Lessee from and against any and all claims, demands, suits, actions, recoveries, judgments and costs and expenses (including attorney's fees) in connection therewith made, brought or obtained on account of the loss of life, property, or injury or damage to person or property of any person or persons whomsoever, which loss of life or property, or damage to persons or property, shall be to or arise out of, result from, or be in any way connected with any act or omission of the Lessor or its employees, agents, or contractors at the Premises. (b) Lessee assumes all risk of and responsibility for, to the extent permitted by law, and agrees to indemnify and save harmless Lessor, from and against any and all claims, demands, suits, actions, recoveries, judgments and cost and expenses (including attorney's fees) in connection therewith made, brought or obtained on account of the Ioss of life, property or injury or damage to persons or property, shall be due to arise out of, result from, or be in any way connected with use or operation of Lessee's equipment or transmission lines, or with any act or omission of the Lessee or its employees, agents, or contractors at the Premises. 5 19. Insurance: (a) Lessee shall procure and maintain comprehensive public liability and property damage insurance covering the Site, including contractual liability insurance to cover this Agreement, in an insurance company approved by Lessor, with A.& M. Best and Company rating of no less than AX, covering all its operations and activities on or in connection with the Premises with a single limit of not less than Two Million Dollars ($2,000,000) naming Lessor as an additional insured as its interest shall appear and shall furnish Lessor with a certificate evidencing such insurance and stating that such coverage shall not be canceled or changed until Lessor shall be given thirty (30) days notice in writing. The insurance must be carried throughout the term of this lease. (b) Lessee shall also cause any independent contractors to procure Workmen's Compensation Insurance (if required by law) and to procure Comprehensive Public Liability Insurance complying with the above paragraph. A copy of the insurance policies shall be furnished to Lessor prior to the commencement of work by any independent contractor. (c) Each such policy of insurance shall provide for the waiver of right of subrogation the insurer may obtain against Lessor. 20. Liens: If any mechanic's, laborer's or material man's lien shall at any time be filed against the Premises as a result of either Lessor or Lessee's occupancy thereof, or which arises out of any claim asserted against the Lessor or Lessee, the party hereto against whom a claim exists giving rise to such lien shall, within thirty (30) days after notice of the filing thereof, cause the same to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction, or otherwise. If either party fails to cause such lien to be discharged during the period aforesaid, then in addition to any other right or remedy, the other party may, but shall not be obligated to, discharge the same by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings. Any amount paid by Lessee and all costs and expenses incurred by Lessee in connection with such a claim shall be credited upon installments of rent payable by Lessee to Lessor hereunder. Any amount paid by Lessor in connection with any such mechanic's, laborer's or material man's lien or arising out of a claim asserted against Lessee incurred by Lessor in connection therewith, shall constitute additional rent payable by Lessee to Lessor on demand. 21. Reserved Rights: Lessor reserves the right to use the remainder of the Premises in any manner consistent with the provisions of the Lease. 6 22. Default: The occurrence of any of the following events shall constitute an "Event of Default" by Lessee under the terms of this Lease. (a.) If Lessee shall desert or abandon the Site and such desertion or abandonment shall continue for a period or ten (10) days, or (b) If Lessee shall fail to pay an installment of lease fee or other sum herein specified when due provided such failure shall continue for five(5) business days after written notice thereof by Lessor to Lessee, or (c) If Lessee shall fail to comply with any other agreement, term, covenant or condition of this Lease (except for a failure to comply with Section 10), which is addressed in (d) below and such default in compliance shall continue for a period of ten (10) business days after notice of Lessor specifying the claimed default, and Lessee shall not, in good faith, have commenced within said ten (10) day period to remedy such default and diligently and continuously proceed therewith, or (d) If Lessee shall fail to comply with the terms and conditions of Section 10 hereof and such default in compliance shall continue for a period of five (5) business days after notice by Lessor specifying the claimed default, and Lessee shall not , in good faith, have commenced within said five (5) day period to remedy such default and diligently and continuously proceed therewith, or (e) Upon failure of Lessee to secure dismissal within sixty (60) days of either (i) the appointment of a receiver to take possession of all substantially all of the assets of Lessee, or(ii) any action taken or suffered by Lessee under any insolvency or bankruptcy act, or any chapter or provision thereof, or (f) Upon a verbal assignment by Lessee for the benefit of creditors, or In any case if any Event of Default shall occur, Lessor may: (a) Elect to terminate Lessee's right to use the Premises, and in such event Lessor may recover from Lessee all amounts permitted by law, plus interest pursuant to Section 23 hereof on all such amounts, or (b) Elect not to terminate this Lease, and in such event Lessor may enforce all of its rights and remedies under this Lease, including without limitation the right to recover the lease fee as it becomes due, together with interest thereon pursuant to Section 23, hereof. The occurrence of any of the following events shall constitute an "Event of Default" by Lessor under the terms of this Lease. If Lessor shall fail to comply with any material agreement, term, covenant or condition of this Lease and such default in compliance shall continue for a period of ten (10) business days after notice of Lessee specifying the claimed default, and Lessor shall not, in good faith, have commenced within said ten (10) day period to remedy such default and diligently and continuously proceed therewith. In any case if any Event of Default shall occur, Lessee may, at its option terminate the Lease. 7 23. Interest on Delinquencies: Any payment of lease fee or amounts provided herein not paid when and as due shall bear interest at the prime rate, as hereinafter defined, plus 4%, until paid, which interest shall also be deemed additional lease fee hereunder. The acceptance by Lessor of any such delinquent payment without the applicable interest thereon shall not be deemed a waiver of Lessor's right to recover such interest at any later time. As used herein, the term"prime rate" is defined as the rate of interest per annum charged by State Street Bank and Trust Company, whose headquarters are located in Boston, Massachusetts, on ninety (90) days unsecured loans to its largest and most creditworthy commercial customers as of the opening of business of said State Street Bank and Trust Company on the first day of the preceding calendar month. 24. Termination: At the expiration of the Term or upon any other termination of this Lease, Lessee agrees to quit the Premises, and to restore the Premises to Lessor in as good condition as upon delivery of possession to Lessee, reasonable use and wear thereof excepted. All property which Lessee is privileged to remove shall be removed by Lessee and at its expense on or before the termination of this Lease, otherwise it shall at Lessors option be deemed to be and shall become the property of Lessor at such termination, or may be removed or disposed of by Lessor and Lessee shall reimburse Lessor for the costs of removal and disposition thereof upon demand. 25. Subordination: It is understood and agreed that this Lease is secondary and subordinate to any mortgages, deeds of trust, or other liens which now cover, or may in the future cover, the Premises. Lessee will, upon request of Lessor, promptly execute or cause to be executed such writing as may be necessary or requisite to evidence the fact that any rights given Lessee under this Lease are subordinate to any such mortgages, or deeds of trust, or other liens provided Lessee receives a non-disturbance agreement from such lien holder reasonably acceptable to Lessee. Nothing provided herein shall be construed to give Lessee any rights in the Premises other than the limited right to use the Premises as expressly provided in Section 1 of this Lease Agreement. 26. Estoppel Certificate: Lessee shall at any time and from time to time, upon not less than ten (10) days prior written notice from Lessor, execute, acknowledge and deliver to Lessor a statement in writing certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified , is in full force and effect) and the date to which the lease fee and other charges are paid in advance, if any, and acknowledging that there are not, to Lessee's knowledge, any uncured defaults if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Premises. Lessee's failure to deliver such statement within such time shall be conclusive upon Lessee that this Lease is in full force and effect, without modification except as may be represented by Lessor, that there are no uncured defaults in Lessor's performance, and that no more than one month's lease fee has been paid in advance. 27. Waiver: No waiver of any default or breach of any covenant by Lessee shall be implied from any omission by Lessor to take action on account of such default if such default persists or is repeated; and no express waiver shall affect any default other than the default specified in the waiver, and then said waiver shall be operative only for the time and to the extent therein stated. The waiver by Lessor of any breach hereof shall be limited to that particular instance, and shall not constitute a waiver of any other breach, past or future. The subsequent acceptance of lease fee by Lessor shall not be deemed to be waiver of any preceding breach by Lessee or any term, covenant, or condition of this Lease, other than the failure of 8 Lessee to pay the particular lease fee so accepted, regardless of Lessor's knowledge of such preceding breach at the time of acceptance of such lease fee. The consent or approval by Lessor of any act or thing requiring its consent or approval shall not be deemed to waive or render unnecessary Lessor's consent or approval to or of any subsequent similar acts. 28. Amendments: This Agreement may not be changed, modified or terminated, except by written instrument executed by a duly authorized 29. Convenant of Quiet Enjoyment: Lessor convenants and agrees with Lessee that upon Lessee paying the rent due and observing and performing all the terms, convenants and conditions of this Lease on its parts to be observed and performed, Lessee may lawfully, peacefully and quietly hold and enjoy the Premises during the term of this Lease and any extension thereof, without hindrance, eviction or molestation by Lessor or any person of persons claiming under Lessor or claiming by a title superior to that of Lessor, subject nevertheless to the terms and conditions of this Lease. 30. Governing Law: This Lease shall be construed in accordance with and governed by the laws of the State of Florida. 31. Attorney's Fees: In the event of any action filed in relation to this Lease, the prevailing party shall be entitled to recover from the other reasonable attorney's fees and other disbursements. 32. Entire Agreement, Serverability: This Lease embodies the entire agreement between the parties. It may not be modified or terminated except as provided herein or by other written agreement between the parties. If any term or provision of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remaining terms and provisions of this Lease, or the application of such terms or provisions to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this lease shall be valid and enforced to the extent permitted by law. 33. Headings: The heading of the sections of this Lease are for the purpose of convenience only, are not part of this Lease, and shall not be deemed to modify, explain, or restrict in any manner any of the provisions of this lease. 9 34. Manner of Giving Notice: Any notice to be given under this Lease shall be mailed to the party to be notified at the address set forth herein, by registered or certified mail with postage prepaid, and shall be deemed given when so mailed. Any demand or notice to either party may be given to other party by addressing the written notice to: LESSOR: Henri J. DesPlaines, Executive Vice President J.J. TAYLOR COMPANIES,INC. Golden Bear Plaza 11780 U.S. Highway#1,Suite 204 North Palm Beach,FL 33408 With a Ken Skok,Chief Engineer Copy to: TAYLOR COMMUNICATIONS OF ORLANDO 337 S. Northlake Boulevard,Suite 1024 Altamonte Springs,FL 32701 LESSEE: do Ocoee Police Department with a copy to: 175 N. Bluford Avenue Ocoee City Manager Ocoee,FL 34761 150 N. Lakeshore Drive Attn: Chief of Police Ocoee,FL 34761 35. Parties Bound by Agreement: Subject to the provisions hereof, this Lease shall extend to and bind the heirs, executors, administrators, successors and assigns of the parties hereto. LESSOR: LESSEE: CITY OF OCOEE, FLORIDA By: By: Henri J. DesPlaines S. Scott Vandergrift, Mayor Executive Vice President For Use and Reliance Only ATTEST: by the City of Ocoee, Jean Grafton, City Clerk Florida, Approved as to Form and legality this day of , 1995 (SEAL) FOLEY&LARDNER Approved by the Ocoee City Commission at a meeting held on , BY: 1995 under Agenda Item No. . City Attorney 10 PAYMENT AGREEMENT City of Ocoee agrees to pay J. J. TAYLOR COMPANIES, INC., for the tower rental covered under the agreement within 30 days from date of billing. In the event of default in payment, it is agreed that City of Ocoee shall pay all collection and court costs, including a reasonable attorney's fee. ACKNOWLEDGED BY: HENRI J. DESPLAINES Executive Vice President DATE: ACCEPTED BY: TITLE EXHIBIT A 1. Operating frequencies are as follows: Transmitter Frequency 156.210 MHz Receive Frequency 155.910 MHz 2. Description of Lessee's equipment: 1 VHF Repeater with Duplexer, Antenna and Transmission Line ANTENNA- TYPE: MAKE: N/A MODEL: TYPE OF MOUNT: WINDLOAD: TRANSMITTER- TYPE: In Same Unit Motorola MSR2000 MAKE: Model # C73KSB3106BT MODEL: Serial # 482CPY0328 RECEIVER- TYPE: ECEIVERTYPE: MAKE: MODEL: FEEDLINE-(Use standard butterfly clamps to secure to tower) TYPE: MAKE: N/A MODEL: