Item P13BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 6-18-2008 Division: County Attorney
Bulk Item: Yes X No Staff Contact Person: Natileene Cassel
Telephone# 292-3470
AGENDA ITEM WORDING: Approval of Amendment to Lease, Termination of
Agreement and Bill of Sale between Monroe County and Comcast of
California/Colorado/Florida/Oregon, Inc. which will transfer ownership of
Communication Tower at Long Key to County.
ITEM BACKGROUND: The County owns property at Long Key on which is presently
located a communications tower and out buildings. Comcast owns the tower and
outbuildings and leases the property from the County. Comcast wants to terminate the
lease. County ownership of tower would allow County to have better coverage for
emergency communications. The County would lose the income from the lease at
$750.00 per month for 24 months; however, County is negotiating with another tenant
who is interested in making improvements to the structure and who will also work with
the County at another communications sight to improve emergency communications
coverage throughout the County. This document will terminate the lease to Comcast and
transfer the tower to the County. This transfer will enable the County to improve
emergency communications in the Keys.
PREVIOUS RELEVANT BOCC ACTION: In January 1996 County leased the
property on Long Key to TCI Cablevision for a term of March 9, 1995 to March 8,
2110. TCI Cablevision subsequently merged with Comcast of
California/Colorado/Florida/Oregon, Inc. and has taken over the lease.
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS: Approval
TOTAL COST: -0- BUDGETED: Yes _ No
COST TO COUNTY: -0- SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year
APPROVED BY: County Atty IrOMB/Furchasing _ Risk Management
DOCUMENTATION: Included
DISPOSITION:
Revised
Not Required
AGENDA ITEM #
ge-Ack-11f
AMENDMENT TO LEASE,
TERMINATION AGREEMENT AND
BILL OF SALE
THIS AMENDMENT TO LEASE, TERMINATION AGREEMENT AND BILL OF
SALE is entered into this day of 2008 by and between COMCAST OF
CALIFORNIA/COLORADO/FLORIDA/OREGON, INC. ("SELLER/LESSEE"), a Florida
Corporation, having an address at 1010 Kennedy Drive, Suite 200, Key West, Florida 33040, and
Monroe County ("COUNTY/LESSOR"), a political subdivision of the State of Florida, whose
address is 1100 Simonton Street, Key West, Florida 33040.
WHEREAS, SELLERILESSEE and COUNTY/LESSOR are parties under a certain
Lease Agreement originally between TCI Cablevision of Florida, Inc. and COUNTY/LESSOR,
respecting certain real property more particularly described below (a copy of said lease is
attached hereto as Exhibit "A"); and
WHEREAS, SELLER/LESSEE is the successor by merger to TCI Cablevision of
Florida, Inc., and affirmatively states that it is the present owner of the Improvements which are
the subject of this Agreement; and
WHEREAS, SELLER/LESSEE had made certain improvements to the Leased Premises,
including but not limited to a tower, and other site improvements (together, the "Improvements");
and
WHEREAS, the parties hereto desire to cancel and terminate said lease prior to its
original termination date of March 8, 2010; and
WHEREAS, COUNTY/LESSOR has requested for SELLER/LESSEE to leave said
Improvements in place; and
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged, COUNTY/LESSOR and SELLER/LESSEE hereby AMEND the Lease
as follows:
1. Termination: Effective upon execution of both parties (the "Cancellation
Date") the Lease shall be cancelled and terminated. As of the Cancellation Date,
neither COUNTY/LESSOR nor SELLER/LESSEE shall have any further right
against the other under the lease, except as set forth herein.
2. Surrender of the Premises: SELLER/LESSEE shall vacate and surrender the
Premises as of the Cancellation Date in its as -is condition.
3. Leeal Description of Property: COUNTY/LESSOR owns the ]eased premises
described below:
A tract of land in a part of Government Lot 1, Section 5, T. 65 S., R. 35 E.,
on Long Key, Monroe County, Florida, and being more particularly
described by metes and bounds as follows:
Commencipg at the centerline of U.S. Highway No. 1 and the Point of
Curve of Station 24068 plus 96.1, Florida East Coast Railway Right of Way
and Tract Map, bear northeasterly along the centerline of U.S. Highway No.
1 for a distance of 330.22 feet to a point; thence at right angles and
southeasterly for a distance of 50.0 feet to the point of beginning of the tract
of land hereinafter described, said point of beginning also being on the
southeasterly right-of-way line of U.S. Highway No. 1; from said point of
beginning, continue bearing southeasterly and at right angles to U. S.
Highway No. 1 for a distance of 300.0 feet to a point; thence at right angles
and northeasterly for a distance of 300.00 feet to a point; thence at right
angles and northwesterly for a distance of 300.0 feet to a point on the
southeasterly right-of-way line of U.S. Highway No. 1; thence bear
southwesterly along the southeasterly right -of —way line of U.S. Highway
No. 1 for a distance of 300.0 feet, back to the point of beginning.
4. Bill of Sale/Transfer of Ownership of Improvements: SELLER/LESSEE
does, effective as of the Cancellation Date, hereby sell, transfer and convey to the
COUNTY/LESSOR, all of SELLER/LESSEE's right, title and interest in and to the
Improvements.
The Improvements are conveyed in their "as is", "where is" condition as
of the Cancellation Date. All warranties, express or implied, including
warranties of title, merchantability, and fitness for a particular purpose are hereby
disclaimed.
COUNTY/LESSOR releases SELLER/LESSEE from all liability with respect to
the Improvements, including but not limited to the environmental aspects and
physical condition of the Improvements, their valuation, and suitability for
COUNTY/LESSOR's purposes. COUNTY/LESSOR acknowledges: (i) That in
accepting ownership of the Improvements, COUNTY/LESSOR has been given
the opportunity to investigate and study the Improvements, including, without
limitation, the opportunity to conduct its own physical and environmental
inspections of the Improvements, and that COUNTY/LESSOR is not relying on
any representation or warranty of SELLER/LESSEE regarding the physical or
environmental condition of the Improvements; (ii) COUNTY/LESSOR will
acquire the Improvements, including, without limitation, the opportunity to
conduct its own physical and environmental inspections of the Improvements,
and that COUNTY/LESSOR is not relying on any representation or warranty of
SELLERILESSEE regarding the physical or environmental condition of the
Improvements; (ii) COUNTY/LESSOR will acquire the Improvements in their
"as is", "where is" condition and shall assume the risks that adverse physical
conditions may not have been revealed by its investigation, and
SELLER/LESSEE specifically disclaims making any representation or warranty
respecting the Improvements physical condition, including, but not limited to,
warranties of fitness, merchantability, fitness for a particular purpose, habitability
or tenantability.
COUNTY/LESSOR hereby fully releases SELLER/LESSEE and its officers,
directors, and shareholders, from all claims, demands and causes of any action,
known or unknown, of whatever kind arising out of or related to the
Improvements.
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5. JURISDICTION AND VENUE: This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida applicable to Agreements made and to be
performed entirely in the State. In the event that any cause of action or administrative proceeding
is instituted for the enforcement or interpretation of this Agreement, the COUNTY/LESSOR and
SELLER/SELLER/LESSEE agree that venue will lie in the appropriate court or before the
appropriate administrative body in Monroe County, Florida.
6. MEDIATION: The COUNTY/LESSOR and SELLER/LESSEE agree that, in the event
of conflicting interpretations of the terms or a term of this Agreement by or between any of them
the issue shall be submitted to mediation prior to the institution of any other administrative or
legal proceeding.
7. SEVERABILITY: If any term, covenant, condition or provision of this Agreement (or
the application thereof to any circumstance or person) shall be declared invalid or unenforceable
to any extent by a court of competent jurisdiction., the remaining terms, covenants, conditions and
provisions of this Agreement, shall not be affected thereby; and each remaining term, covenant,
condition and provision of this Agreement shall be valid and shall be enforceable to the fullest
extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and
provisions of this Agreement would prevent the accomplishment of the original intent of this
Agreement. The COUNTY/LESSOR and SELLER/LESSEE agree to reform the Agreement to
replace any stricken provision with a valid provision that comes as close as possible to the intent
of the stricken provision.
S. NON DELEGATION OF DUTIES UNDER LAW: This Agreement is not intended to,
nor shall it be construed as, relieving any participating entity from any obligation or responsibility
imposed upon the entity by law except to the extent of actual and timely performance thereof by
any participating entity, in which case the performance may be offered in satisfaction of the
obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed
as, authorizing the delegation of the constitutional or statutory duties of the COUNTY/LESSOR,
except to the extent permitted by the Florida constitution, state statute, and case law.
9. NO OUTSTANDING LAWSUITS: SELLER/LESSEES covenant that to its actual
knowledge as of the date of its execution of this Agreement there are no outstanding lawsuits,
judgments, attached to the towers and Improvements, and they have no knowledge or notice in
any form of any threatened or pending lawsuits, or claims from persons, corporations, entities,
tenants, employees, personnel, invitees of any nature whatsoever against the SELLER/LESSEE
which in any way relates to the leased premises; or which could prejudice COUNTY/LESSOR.
10. NO PERSONAL LIABILITY: No covenant or agreement contained herein shall be
deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe
COUNTY/LESSOR in his or her individual capacity, and no member, officer, agent or employee
of Monroe County shall be liable personally on this Agreement or be subject to any personal
liability or accountability by reason of the execution of this Agreement. No covenant or
agreement contained herein shall be deemed to be a covenant or agreement of any member,
officer, agent or employee of SELLER/LESSEE in his or her individual capacity, and no
member, officer, agent or employee of SELLER/LESSEE shall be liable personally on this
Agreement or be subject to any personal liability or accountability by reason of the execution of
this Agreement.
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11. EXECUTION IN PARTS: This Agreement may be executed in any number of
counterparts, each of<which shall be regarded as an original, all of which taken together shall
constitute one and the same instrument and any of COUNTY/LESSOR and SELLER/LESSEE
hereto may execute this Agreement by signing any such counterpart.
12. SECTION HEADINGS: Section headings have been inserted in this Agreement as a
matter of convenience of reference only, and it is agreed that such section headings are not a part
of this Agreement and will not be used in the interpretation of any provision of this Agreement.
IN WITNESS WHEREOF COUNTY/LESSOR and SELLER/LESSEE hereto have executed this
Agreement on the day and date first written above in four (4) counterparts, each of which shall,
without proof or accounting for the other counterparts, be deemed an original contract.
Attest:
Danny L. Kohlage, Clerk
By:
Deputy Clerk
Date:
Witnesses for Comcast of
California/Colorado/Florida/Oregon, Inc.
45yz Lz=-- '5��e
Signature
Print Name,,
O
aA�- -
Si nature
Print Name
Date:
Board of County Commissioners
of Monroe County
By:
Charles "Sonny" McCoy, Mayor
Date:
For Comcast of
California/Colorado/Florida/Oregon,
Inc.
Signat re
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Title 10-e
Date: &/5'/05
Address: /BIRO/ 41W 2.viD /lAe—
Telephone Number:
MONROE COUNTY ATTORNEY
YPROVEI3 AS TO F
NATILEENE W. CgSSEL
ASSISTANT COUNTY —
STATE OF Date- 4-0V _
COUNTY OF I
Sworn to (or aff d) d subscribed before me this day of �e— , 20�bby
for Comcast of California/Colorado/Florida/Oregon,
Inc., who is rsonally kno tam r produced the following identification
ELIZRBETH M. Hi
MY COMMISSION #D4 '
Notary Stamp: i=ot�"Y'se� CHT gnature of Notary
j 7 EXPIRES: FEB 28, 2009
Bonded through 1 st State Insurance
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EXHIBIT "A"
[Attach copy of Lease]
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LEASE AGREEMENT
THIS AGREEMENT is made and entered into by Monroe County, a political subdivision
of the State of Florida, whose address is 5100 College Road, Stock Island, Key West, FL
33040 (Lessor/County), and TCI Cablevision of Florida, Inc., whose address is 1700 N.
Roosevelt Blvd., Key West, FL 33040 (Lessee/TCI).
The County owns a tract of land on Long Key, Florida, which has previously been
leased by TCl and its predecessors for use in connection with cable services provided
throughout Monroe County. The parties desire that the County lease said property to TO
for the duration of its existing County franchise. Therefore, the County and TO agree as
follows:
1. PREMISES. The County leases to TCI the property described below:
A tract of land in a part of Government Lot 1,
Section 5, T. 65 S., R. 35 E., on Long Key, Monroe
County, Florida, and being more particularly
described by metes and bounds as follows:
Commencing at the centerline of U.S. Highway No.
1 and the Point of Curve of Station 24068 plus 96.1,
Florida East Coast Railway Right of Way and Tract
Map, bear northeasterly along the centerline of
U.S. Highway No. 1 for a distance of 330.22 feet to
a point; thence at right angles and southeasterly
for a distance of 50.0 feet to the point of beginning
of the tract of land hereinafter described, said
point of beginning also being on the southeasterly
right-of-way line of U.S. Highway No. 1; from said
point of beginning, continue bearing southeasterly
and at right angles to U.S. Highway No. 1 for a
distance of 300.0 feet to a point; thence at right
angles and northeasterly for a distance of 300.0
feet to a point; thence at right angles and
northwesterly for a distance of 300.0 feet to a point
on the southeasterly right-of-way line of U.S.
Highway No. 1; thence bear southwesterly along
the southeasterly right-of-way line of U.S. Highway
No. 1 for a distance of 300.0 feet, back to the point
of beginning.
2. TERM. Lessee shall have and hold the above described premises for a term
commencing on March 9, 1995 and terminating on March 8, 2010.
3. RENTAL AMOUNT. Lessee shall pay Lessor the sum of seven hundred fifty
dollars ($750.00) per month, payable on or before the ninth day of each month. The fee
shall be made payable to Monroe County and paid to the Cleric at Monroe County
Courthouse, 500 Whitehead Street, Key West, FL 33040.
4. UTILITIES. Lessee shall promptly pay all gas, water, electric, cable, and any
other utility charges which may become payable during the term of this lease for utilities
used by the Lessee on the premises.
5. MAINTENANCE AND REPAIRS. Lessee shall be responsible for all maintenance
and repairs on the premises in accord with generally accepted business practices.
Lessee shall also be responsible for any of the premises damaged by the Lessee, its
officers, agents, and employees.
6. ALTERATIONS. Lessee shall have the right to make any alterations in and to
the demised premises during the term of this lease upon first obtaining the written
consent thereto of the Lessor, which consent shall not be unreasonably withheld.
7. RIGHT OF INGRESS AND EGRESS. Lessee shall have the right of ingress to and
egress from the premises described above.
8. HOLD HARMLESS AND INDEMNIFICATION. Lessee covenants and agrees to
indemnify and hold harmless Monroe County Board of Commissioners from any and all
claims for bodily injury (including death), personal injury, and property damage
(including property owned by Monroe County) and any other losses, damages, and
expenses (including attorney's fees) which arise out of, in connection with, or by reason
of the Lessee utilizing the property governed by this lease agreement. The extent of
liability is in no way limited to, reduced, or lessened by the insurance requirements
contained elsewhere within this agreement.
9. INSURANCE. The Lessee shall obtain, at its own expense, insurance as specified
below. The Lessee shall maintain the required insurance throughout the entire term of this
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lease agreement. Failure to comply with this provision may result in the immediate
termination of the lease agreement and the return of all property owned by the County.
The Lessee shall provide to the County as satisfactory evidence of the required
insurance, a Certificate of Insurance. All insurance policies must specify that they are
not subject to cancellation, non -renewal, material change, or reduction in coverage
unless a minimum of thirty (30) days prior notification is given to the County by the insurer.
The acceptance and/or approval of the Lessee's insurance shall not be construed as
relieving the Lessee from any liability or obligation assumed under this contract or
imposed by law.
The Lessee shall maintain General Liability Insurance throughout the fife of the
contract and include, as a minimum:
* Premises Operations
* Products and Completed Operations
* Blanket Contractual Liability
* Personal Injury Liability
* Expanded Definition of Property Damage
* Fire Legal Liability (with limits equal to the
fair market value of the leased property)
The minimum limits acceptable shall be $300,000 Combined Single Limit (CSL) If split
limits are provided, the minimum limits acceptable shall be $100,000 per person, $300.000
per occurrence, and $50,000 property damage.
An Occurrence Form policy is preferred. if coverage is provided on a Claims Made
policy, its provisions should include coverage for claims filed on or after the effective
date of this contract. In addition, the period for which claims may be reported should
extend for a minimum of twelve (12) months following_the termination of the lease
agreement.
The Monroe County Board of County Commissioners will be included as "Additional
Insured" on all policies issued to satisfy the above requirements.
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Any deviations from these General Insurance Requirements must be requested in
wrifing on the County prepared form entitled "Request for Waiver of Insurance
Requirements" and approved by Monroe County Risk Management-
10. INJURY OR DAMAGE TO PROPERTY ON PREMISES. Lessee shall be responsible
for all property of any kind that may be on the premises during the term of this lease,
and, except for any negligence of the Lessor, the Lessor shall not be liable to the Lessee
or any other person for any injury, loss or damage to property or to any person on the
premises. In the event that the demised premises or a major part thereof are destroyed
by storm or other casualty, the Lessor may, at its option, forthwith restore the demised
premises at its own cost and expense. Rental thereon will cease until the completion of
such restoration. If the demised premises cannot, after such casualty, be restored within
ninety (90) days, Lessee may terminate the lease, upon giving written notice to Lessor.
11. EXPIRAT[ON OF TERM. At the expiration of the term of this lease, the Lessee
shall peaceably yield up to the Lessor the demised premises in good and tenantable
repair. It is understood and agreed that the Lessee shall have the right to remove from
the premises all personal property of the Lessee and all fixtures, machinery, equipment,
appurtenances, and appliances placed or installed on the premises by Lessee, provided
that the Lessee restores the premises to as good o state of repair as they were prior to the
removal. Lessee shall be solely responsible for any hazardous materials on the premises.
1.2. SUBLEASE ANb ASSIGNMENT. The Lessee shall not subief or assign ail or any part
of the demised premises without prior written consent of the Lessor, provided, however,
that Lessee may assign the lease to an affiliate of Lessee without such consent upon
giving notice to Lessor of the assignment.
13. SUCCESSORS AND ASSIGNS BOUND BY COVENANTS. All the covenants,
stipulations and agreements herein shall extend to and bind the legal representatives,
successors and assigns of the respective parties hereto.
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14. WAIVER. The waiver by the Lessor of any breach of this lease by the Lessee
shall not be construed as a waiver of any subsequent breach of any duty or covenant
imposed by this lease.
15. EARLY TERMINATION. The County shall have the right, upon giving thirty (30)
calendar days written notice to the Lessee of its intent to terminate this Agreement due to
a breach of any of the Lessee's covenants under this Agreement, unless the Lessee shall
correct the default or breach within that thirty (30) day period. Either party may
terminate this lease without cause upon giving ninety (90) days written notice to the
other party.
16. RIGHT OF INSPECTION. The County may enter upon the premises now or
hereafter leased to Lessee at any reasonable time for any purpose necessary, incidental
to, or connected with the performance of its obligations hereunder, or in the exercise of
its governmental functions,
17. NOTICE. Notices to the parties shall be sent by certified mail, postage
prepaid, and addressed to the following:
FOR COUNTY: FOR LESSEE: C;,QPY TO:
Mayor and Chairman of the TCl Cablevision of TCl Southeast, Inc.
Board of County Commissioners Florida, Inc. Legal Department
Monroe County Courthouse General Manager 2204 Lakeshore Drive
P.O. Box 1680 1700 N. Roosevelt Blvd. Suite 325
Key. West. FL 33040 Key West, FL 33040 Birmingham, AL 35209
18. TAXES AND ASSESSMENTS. Lessee shall pay all taxes and assessments which
may be lawfully levied by a duly constituted taxing body with respect to the demised
premises.
19. SURRENDER OF POSSESSION. Upon the expiration or other termination of this
lease or any renewal thereof, Lessee's right to use the premises, facilities, rights, licenses,
services and privileges herein leased shall cease and Lessee shall forthwith upon such
expiration or termination surrender some in good repair.
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20, DISCRIMINATION. The Lessee, in exercising any of the rights or privileges
herein granted to Lessee, shall not discriminate or permit discrimination against any
person or groups of persons on the grounds of race, color, sex, age, national origin, or
any other basis prohibited by law.
21. RENEWAL. The Lessee is hereby granted the option to renew this lease if Lessee
obtains a franchise renewal upon renegotiated terms and conditions. If Lessee desires to
renew this lease under the provisions of this article, it shall give Lessor written notice
thereof not less than ninety (90) days prior to the expiration of the term. Upon receipt of
notice of Lessee's intent to renew, County shall commence negotiations with Lessee.
Both parties shall negotiate new terms and conditions in good faith. This renewal option
shall not be available if the County does not grant a new franchise to Lessee.
22. AS IS. The Lessee accepts the property in "as -is" condition and County shall
not be obligated to repair, maintain, or renovate some.
23. GOVERNING LAW/VENUE. This lease shall be governed and construed in
accordance with the laws of the State of Florida. The venue on any action in this lease
shall be laid in Monroe County, Florida, and any action to determine the rights or
obligations of the parties shall be brought in the Sixteenth Judicial Circuit Court.
24. NO REPRESENTATION. County makes no representation, warranty,
guarantee, or averment of any kind whatsoever concerning the physical condition of
the premises at the commencement of this term, and it is agreed that County will not be
responsible for any loss, damage, or cost which may be incurred by Lessee by reason of
any such physical condition.
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{TCl/Long Key Lease)
IN WITNESS WHEREOF, the parties hereto have caused this lease to be executed as of
the day and year first above written.
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
J0 .I'1.>
D - .. ,+
(SEAL)
ATTEST:
t V0bGff
A, Secretary
as/contracts/tcilong.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
Mayor/%%airman
TCI CABLEVISION OF FLORIDA, INC.
By
Thomas - �.a erint
Title: EXqCtjth18 vice P[astdant
7
APPROVED AS T
AND LE CY
BY
A QRN ' �€FiCE
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