EDACS PRO VOICE SYSTEM- STATEMENT OF WORK
· City of Clearwater. Fl ed
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2002
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Public- Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
Table of Contents,
Schedule A - Statemen~ofWork',
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Electronics
M/A-COM
M/A-GOM Inc,
300 1 Executive Drive
SUite 210
Clearwater. FL 33762
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Tele: 7275728993
Fax: 7275725424
www:macom-wireless,com
June 20, 2002
Robert M. Brumback
Director
City of Clearwater
1701 N. Hercules Ave.
Clearwater, FI 33765-1112
Dear Mr. Brumback,
To clarify a question you have raised on the M/ A-COM contract. M/ A-COM has
no plans or intentions of making Pinellas County remove any of their
communications equipment from your Water Treatment tower site. In fact if
they removed their equipment it would effect the performance of the Cities
system.
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Public-Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
Schedule A
Statement of Work
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Public-Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
SCHEDULE A
STATEMENT OF WORK
OVERVIEW
This project is divided into three phases. Phase 1, Transition, is the controlled transition of
management of this system from the CITY OF CLEARWATER to MIA-COM. Phase 2,
MIA-COM Management and Maintenance, is the daily management and maintenance of the
system with the CITY OF CLEARW A TER as the only user of the system. Phase 3,
Marketing of Tower Space, covers the sales, marketing, and engineering necessary to add
additional users onto the towers.
PHASE 1: TRANSITION
To ensure a smooth and timely transition between CITY OF CLEARWATER managing the
800 MHz trunked radio system to MIA-COM managing and maintaining the system, a
detailed plan must be drafted, agreed upon, and implemented. Phase 1 covers the following:
1. Forming of a Transition Team consisting of personnel from CITY OF
CLEARWATER and MIA-COM.
2. Preparing a Transition Plan that addresses the method and schedule by which the
,management of the system will be transitioned from CITY OF CLEARWATER to
MIA-COM.
3. Documenting the processes and prepanng the policies and procedures that
MIA-COM will follow In their management and maintenance of the system.
4. Training personnel and implementing the MIA-COM procedures.
5. Evaluating the effectiveness of the Transition Phase to ensure a seamless transfer
between processes.
6. Agreeing on moving from the Transition Phase to the MIA-COM Management and
Maintenance Phase.
Responsibilities - MIA-COM
During the Transition Phase, MIA-COM has the following responsibilities:
1. Assign qualified personnel to the Transition Team.
2. Develop the Transition Plan.
3. Develop a thorough understanding of CITY OF CLEARWATER'S existing
processes.
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April 2002
4. Document the processes and prepare the policies and procedures to be used by
MIA-COM for the management and maintenance of the system.
5. Train personnel on the new policies and procedures.
6. Implement the new policies and procedures.
7. Manage and maintain the system in parallel with CITY OF CLEARWATER.
8. Assist with the determination of moving from the Transition Phase to the
MIA-COM Management and Maintenance Phase.
Responsibilities - CITY OF CLEARWATER
During the Transition Phase, CITY OF CLEARWATER has the following responsibilities:
1. Assign qualified personnel to the Transition Team.
2. Assist with the development of the Transition Plan.
3. Educate MIA-COM on CITY OF CLEARWATER existing processes.
4. Assist with documenting the processes and prepare the policies and procedures to
be used by MIA-COM for the management and maintenance of the system.
5. Assist with the training of personnel on the new policies and procedures.
6. Assist with the implementation of the new policies and procedures.
7. Manage the system in parallel with MIA-COM.
8. Evaluate the Transition Phase effectiveness.
9. Assist with the determination of moving from the Transition Phase to the
MIA-COM Management and Maintenance Phase.
PHASE 2: MIA-COM MANAGEMENT AND MAINTENANCE
Upon mutual agreement between CITY OF CLEARWATER and MIA-COM, the project will
move into Phase 2, MIA-COM Management and Maintenance. This phase includes
MIA-COM managing and maintaining the 800 MHz EDACS system to provide an agreed
upon grade of service.
Responsibilities - MIA-COM
During the MIA-COM Management and Maintenance Phase, MIA-COM has the following
responsibilities:
1. Assign an individual qualified to manage the daily maintenance of the system.
2. Maintain records and information for input to the performance evaluation.
3. Manage and maintain the system at an agreed upon grade of service.
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April 2002
Responsibilities - CITY OF CLEARWATER
During the MIA-COM Management and Maintenance Phase, CITY OF CLEARWATER has
the following responsibilities:
1. Communicate problems discovered with the system by using the procedures and
policies that are implemented.
2. Own and maintain the frequencies currently licensed for the system.
3. Pay an access fee to MIA-COM for the management of the system.
4. Provide MIA-COM reasonable access to all sites, buildings, and structures
associated with the system in accord with ~ 4.7 of the Service Agreement.
PHASE 3: MARKETING OF TOWER SPACE
Phase 3 consists of the marketing of tower space to third parties. This phase will run
concurrently with Phase 2, MIA-COM Management and Maintenance. This phase consists of
the following:
1. MIA-COM continuing to manage and maintain the system to provide the agreed
upon grade of service to CITY OF CLEARWATER
2. MIA-COM performing the sales, marketing, and engineering services necessary to
add new Third-Party Tower Tenants onto the towers, provided the CITY OF
CLEARWATER'S grade of service is not effected.
3. MIA-COM providing equipment necessary to ensure the agreed upon grade of
service is provided to CITY OF CLEARWATER.
4. MIA-COM implementing procedures and policies for billing, revenue sharing,
service, maintenance, and problem resolution associated with the addition of other
users.
Responsibilities - MIA-COM
During this Phase MIA-COM has the following responsibilities:
1. Develop the proposals required to add users to the towers.
2. Prepare the procedures and policies required for billing, revenue sharing, service,
and problem resolution associated with the addition of other users on the towers.
Responsibilities - CITY OF CLEARWATER
During this Phase CITY OF CLEARWATER has the following responsibilities:
1. Approve and concur to the terms of the agreement.
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CITY OF CLEARWATER, FLORIDA
April 2002
SYSTEM DESCRIPTION
DETAILED RADIO SYSTEM INFRASTRUCTURE
The CITY OF CLEARWATER currently owns and operates an eleven channel 800 MHz
MIA-COM, Enhanced Digital Access System (EDACS@). The system includes a main site
with a 300-foot tower, building, and generator located on Missouri Ave. as well as a full
backup site that includes a 300-foot tower, building and generator. These two sites are
connected via a city- owned 2 GHz microwave system. A receiver voting system is in place
that votes the best audio from the main site, backup site, and two additional receiver sites.
The main dispatch center and system manager terminal are located within the Police
Department headquarters. The 6ghz Microwave Radio System is County owned and the
County shall continue to own and be responsible for all required on-going maintenance.
Maintenance responsibility for the 2ghz Microwave System shall reside with MIA-COM.
The following are the elements, which comprise the Communications System as defined in
the Service Agreement.
The following two tower sites in the Communications System to which MIA-COM shall be
given free and unfettered access will be licensed to MIA-COM by the CITY OF
CLEARWATER for consideration and transfer of user gear and system enhancements as
defined in the Service Agreement.
Main Site:
Missouri Ave (FDOT property)
27 56 42
8247 13
66 ft AMSL
300 ft SSV tower
North Site (backup site):
Water Treatment Plant
28 01 56
82 42 17
35ft AMSL
300 ft SSV tower
Free and unfettered access to and use of the following elements of the Communications
System shall be granted to MIA-COM.
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CITY OF CLEARWATER, FLORIDA
. Q!y Description
Main Site:
10 Mastr II RF Channels
1 Mastr III RF Channel
1 Multicoupler
1 Tower Pre Amp
11 Voter System
1 Site Controller
4 Multiplexer Shelves
1 Harris 2ghz Microwave Radio System
3 Interconnected RF Channels
1 Lot of Antennas & cable
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WPC North:
10 Mastr II RF Channels
1 Mastr III RF Channel
1 Site Controller
1 Tower Pre Amp
3 Multiplexer Shelves
1 Harris 2ghz Microwave Radio System
1 CC Monitor
1 TX / RX Biamplifier
1 Lot of Antennas & Cable
Tarpon Sprine:s:
11 Satellite Receivers
1 CC Monitor
Toy town:
11 Satellite Receivers
1 CC Monitor
Police Dispatch. Clearwater Gas. Radio Shop:
1 System Manager
1 CEC Switch (includes Uplink/Downlink
9 C3 Maestro Consoles
3 C3 Maestro Consoles (remote)
1 CEC Manager
1 Database Management
1 Multiplexer Shelf
10 OVID
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TX / RX Biamplifier (jail)
Countryside Mall. Countryside HiS!hSchool:
3 TX / TX Biamplifier
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April 2002
TRANSITION PLAN
Schedule A, Statement of Work, identifies three phases. The first phase, Transition, is the
controlled transition of managing the Communications System from CITY OF
CLEARWATER to MIA-COM. The Transition Plan will be jointly developed by a
Transition Team consisting of qualified individuals from both MIA-COM and CITY OF
CLEAR WATER. The plan will be drafted, approved, and implemented to ensure that a
smooth, seamless transition occurs.
The steps required to develop and implement the Transition Plan are:
1. Forming of a Transition Team consisting of personnel from CITY OF
CLEARWATER and MIA-COM.
2. Preparing a Transition Plan that addresses the method and schedule by which the
management of the Communications System will be transitioned from CITY OF
CLEARWATER to MIA-COM.
3. Documenting the processes and preparing the policies and procedures that MIA-COM
will follow in their management and maintenance of the system.
4. Evaluating the effectiveness of the Transition Phase to ensure a seamless transfer
between processes.
5. Agreeing on moving from the Transition Phase to the MIA-COM Management and
Maintenance Phase.
6. Agreeing on a specific, mutually acceptable schedule for backbone and hardware
replacements and upgrades pursuant to Section 3.7 of the Service Agreement.
The attributes of the Transition Plan to be developed by the Transition Team are:
1. Preventive and corrective maintenance plans.
2. Trouble ticket processing.
3. Emergency response procedures.
4. Level of spares to be maintained.
5. Problem communication and resolution processes.
6. Radio programming and talk group allocation.
7. Organizational structure.
8. Prioritizing resource allocations.
9. Training requirements.
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April 2002
MAINTENANCE PLAN
OVERVIEW
The CITY OF CLEARW A TER Communications System is currently maintained by
Communications International Inc. During the Transition Phase, MIA-COM and CITY OF
CLEARWATER, using this existing Service Contract, will jointly develop the Maintenance
Plan that will describe the method by which MIA-COM will assure Communication System
availability in full compliance with the Service Agreement. The Maintenance Plan will cover
both MIA-COM and CITY OF CLEARWATER responsibilities as applicable. It will
encompass on- site support, MIA-COM depot repair, and 24x7x365 technical assistance.
This plan will be implemented by MIA-COM personnel.
Although the final Maintenance Plan will be jointly developed and approved by MIA-COM
and CITY OF CLEARWATER, the following paragraphs outline what is expected to be
included in the plan.
SYSTEM INFRASTRUCTUREIFIXED EQUIPMENT
MAINTENANCE
Trained EDACS technicians will be assigned to monitor and maintain the EDACS system
during normal working hours. They will provide 24x7x365 support for system failures and
malfunctions. Additionally, during normal working hours, they will monitor system
operation when not performing preventive or remedial maintenance activities.
All problem resolution activity will be tracked using a work ticket tracking database provided
by MfA-COM at no expense to the CITY OF CLEARWATER. Upon resolution, before the
work ticket is closed, all pertinent information associated with the event will be recorded in
the database.
Field technicians will be provided with the necessary service vehicle, test equipment, and
tools by MIA-COM. Additionally, all required material, repair parts, transportation, and
shipping required to maintain the Communications System will be provided by MIA-COM.
MIA-COM will supply all parts, labor and software needed to perform maintenance on the
towers, and Communications System, at no charge to the CITY OF CLEARWATER.
This maintenance plan is designed to meet an on-site response time of two hours from
notification for critical system communication failures and six hours from notification for
Communications System restoration time. A critical system communication failure is
defined as a failure resulting in loss of communication ability such as a site off the air, a
dispatch console failure at a location with no backup console, !MC failure, inability of the
system to trunk calls, a site link failure, 50% or more failed repeaters at an EDACS trunked
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April 2002
. site, or a failed repeater at EDACS trunked sites with four or less channels. Non-critical
service requests will be responded to within one working day. In the event of a critical system
failure, MIA-COM will notify designated CITY OF CLEARWATER personnel to advise
them of the failure and the actions being taken to resolve the problem.
MIA-COM will provide an escalation contact list to designated CITY OF CLEARWATER
personnel. This list will include the name, phone number, and location of the MIA-COM
service team members that should be contacted if escalation of an issue is deemed
appropriate. This list will contain the following:
. Toll free service number
. On-call technician for the service area
. Service area manager
. CITY OF CLEARW A TER Field Service Manager
. Regional Service Manager
. Director of Field Service
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MIA-COM field technicians or the approved service provider will have 24x7x365 second tier
technical support from MlA-COM's Technical Assistance Center (TAC) located in
Lynchburg, Virginia. The T AC has access to all Lynchburg Engineering staff as well as other
US-based technicians located at MIA-COM service facilities should they be needed.
The following system performance reports will be provided monthly:
. Number of system service requests
· Service call response times for critical and non-critical service requests
· Service call restoration times for critical and non-critical service requests
. Total number of push-to talk (PTTs)
. Number of queued calls/average time in queue
. Total air time usage
· Service report providing details of any critical system failure and their resolution
and corrective action.
Semi-Annual Testing
Twice yearly, MIA-COM will perform extensive system testing on the EDACS system. This
testing will include the following listed system related items:
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April 2002
1. Physical Site
. Site environmental inspection.
. HV AC operation.
. Cleaning of floors, air filters, and exposed equipment.
. Visual inspection of physical shelter.
. Fencing, grounding resistance, ground level tower visual.
. Paint, lighting, and heliax cable visual from ground level.
. UPS operation (where installed) battery condition.
. Generator oil, fuel, and transfer switch (load) test. If applicable
2. RF System Critical Measurement
. Antenna system (system analyzer printout).
. Individual RF station specification test.
. Clean cabinet air filters, cabinets, and equipment.
3. Mux Equipment
. Multiplex equipment operation verification.
4. Dispatch Hardware
. Console position CRT's, keyboards, mouse.
. Hardware inspection and technical cleaning of console positions.
. Headset jacks.
. Speakers.
. Logging recorder operation.
. Alarm system verification.
DISASTER EMERGENCY RESPONSE
Upon notification by CITY OF CLEARWATER of the potential for severe weather or natural
disasters, MIA-COM will implement a pre-disaster preparedness plan. MIA-COM will
inspect all sites for access and integrity. This will include ensuring all generator fuel tanks
are full, shelters are secure, antenna cables are properly mounted, and site access is clear.
Service technicians will be alerted and put on stand-by for dispatching to pre-assigned
locations mutually agreed to by CITY OF CLEARWATER and MIA-COM.
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April 2002
DETERMINATION OF SERVICE LEVELS
MIA-COM agrees to maintain the CITY OF CLEARWATER existing or subsequently
upgraded Communications System for the duration of this Service Agreement subject to the
following assumptions and conditions.
1. Assessment of Existin.e; CITY OF CLEARWATER Coverage
MIA-COM will, upon signing the Service Agreement, begin to assess the eXIstmg
coverage provided by each site in the CITY OF CLEARWATER Communications
System.
MIA-COM will visit each radio site and perform an audit to verify that the Existing
System equipment is operating properly. The audits will verify transmit and receive
antenna subsystem configurations, antenna and cable installations, and power into the
antenna. Corrective actions will be made as necessary to bring the equipment up to FCC
license requirements at each site.
MIA-COM will then use industry standard Wireless Measurement System (WMS)
equipment manufactured by Grayson Electronics to measUre talk-out (base station to
mobile field unit) coverage. The WMS equipment measures the received signal strength
from each radio site and provides an accurate, statistically valid, objective, and repeatable
method to assess coverage. A drive route will be developed and WMS measurements
made at a statistically significant number of locations within the service area of each site.
The WMS measurement data will be analyzed and plotted on a map to show areas where
tijere was sufficient signal level to support a Delivered Audio Quality of 3.0 (DAQ3.0)
for mobile analog voice operations. DAQ3.0 is defined in Telecommunications Industry
Association (TIA) Telecommunications System Bulletin TSB88-A and is equivalent to
the Circuit Merit 3 analog voice quality provided by the Existing System. Sections of the
drive route that are plotted as "black" represent areas where the measured receive signal
levels equal or exceed -110 dBm required for DAQ3.0 voice quality. Sections plotted as
"red" represent areas where measured signal levels are less than -110 dBm. This does not
mean that there is no coverage in the "red" areas, rather it indicates areas with less than
DAQ3.0 voice quality and multiple repeats may be required. Furthermore, the
measurement data and its representation on a map does not guarantee coverage at a
specific point location, but rather, due of the probabilistic nature of RF propagation,
represents expected coverage in an area.
Upon execution of this agreement MIA-COM shall take measured mobile talk-out signal
strength data for each site and will depict the results on maps provided as Exhibits in an
Addendum to this Service Agreement, hereafter referred to as the baseline coverage.
2. Coverage Prediction Maps
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MIA-COM will also provide coverage prediction maps of expected coverage from the
Existing System. The maps, both individual site maps and composite CITY OF
CLEARWATER system-wide coverage maps will be based upon information obtained
during the audit of each site. These coverage maps also assume the land use (agricultural,
open land, residential, urban, industrial, etc) as indicated in the current USGS Land Use
Land Clutter (LULC) database, and absence of towers, buildings or other obstructions
that will impact RF propagation near the site or at specific locations throughout the
coverage service area of a site.
The coverage prediction maps will be provided as Exhibits in an Addendum to this
Service Agreement as reference information only, and indicate where mobile and portable
outdoor coverage is expected, both talk-out (base station to field unit) and talk-back (field
unit to base station).
3. Coverage Maintenance - Reporting and Corrective Action Process
MIA-COM will, as described in the maintenance plan of Schedule A, continue to utilize
the Communications International center located in Tampa Fl. If CITY OF
CLEARWATER users experience coverage problems they will forward them as "trouble
reports" to the CII. Trouble reports will include: (1) the name of the person submitting
the report, (2) the location of the coverage problem (i.e. at the intersection of Sth Ave and
Main St, or in the southern section of the Pleasant Valley subdivision); and (3) the type of
problem, whether mobile or portable operations, and problem description (i.e. can hear
dispatcher but dispatcher cannot hear me, or communication is spotty and requires
multiple repetitions, or can no longer communicate from this area).
MIA-COM will establish a database that will be used to track these reported coverage
problems and identify trends, both in location and type. A trend analysis will be used to
determine if further analysis or corrective actions are required. Multiple trouble reports
received in a short period of time for problems in the same location or area, or for the
same type of problem over a larger area may indicate an immediate response is necessary.
Occasional trouble reports received over an extended period will be analyzed to identify
potential field unit problems, operational problems, subtle changes in coverage
propagation assumptions, or whether or not the problems are simply due to the
probabilistic nature of RF propagation.
MIA-COM responses to coverage problems can, dependent on the trend analysis, include:
a) Review the baseline coverage to determine if coverage was or was not provided
by the Existing System.
b) Visit the problem radio site and perform an audit to verify that the radio system is
operating properly. The audits will verify transmit and receive antenna subsystem
configurations, antenna and cable installations, and power into the antenna.
Corrective actions will be made as necessary.
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c) Visit the site to determine chan.e;es in the land use of the area around the site or the
presence of new buildings or obstructions near the site that would impact
coverage.
d) Visit the problem area or location to determine changes in the land use of the area
or presence of new buildings or obstructions in the area that would impact
coverage.
e) WMS measurement of coverage of the problem area.
f) Field unit tests at the problem area to replicate the trouble reports
g) WMS measurements that are different from the baseline coverage, and that are
due to changes in land use and/or obstructions, will be evaluated for potential
corrective action.
h) A report to CITY OF CLEARWATER describing the reported coverage problem
and the recommended problem resolution.
i) Discussions between MIA-COM and CITY OF CLEARWATER to determine if
further actions are warranted.
j) Update RF coverage prediction maps for the problem site based on the site visit,
the site audit, the visit to the problem area, and updates to the LULC database.
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Schedule B
Existing Contracts
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City Of Clearwater
Equipment Maintenance
Contract
Communications International, Inc.
4450 US Highway 1
P.O. Box 6670
Vero Beach, FL 32961-6670
561-569-5355 888-Ask-4CII
Fax: 561-567-2292
(Local sen-ice center - 813-887-1888)
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AGREEMENT
This agreement, made and entered into this lit dav of October. 1998 by and between The Citv Of
Clearwater. Clearwater. Florida and Communications International. Inc. a Florida
Corporation, hereinafter referred to as "Cll".
WITNESSETH
Whereas, the City Of Clearwater desires to contract with CII to provide maintenance and other
services for the communications systems throughout The Citv Of Clearwater.
This contract supersedes any I all prior maintenance contracts between Communications
Internationa~ Inc. and The City Of Clearwater.
Whereas, the parties hereby desire to enter into this agreement to set forth, in writing, their
. respective rights, duties and obligations hereunder.
Now, therefore, in consideration of the premises, mutual promises, and conditions contained
herein. it is mutually agreed between the parties as follows:
SECTION 1: TERMS:
This agreement shall commence on October 1. 1998, and terminate on September 30. 1999;
provided, however, that the tenns of this agreement may be extended, on an annual basis, by
mutual agreement of the parties in writing, for a one (1) vear period. In the event that either
party desires to exercise this option to extend the agreement, one shall notify the other in writing
at least ninety (90) days prior to the date of termination of the terms then current.
Any extension of this agreement shall be under the same terms and conditions as the initial
agreement terms, compensation to crr shall be modified under the terms and procedures set forth
in attached "Exhibit A" Section #7; and which is incorporated herein by this reference.
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SECTION 2: SCOPE OF SERVICE:
CII hereby agrees to perform all services identified in the "Exhibit A" as well as the optional
services as requested on "Exhibit B" and incorporated herein by this reference and to include all
backbone RF equipment. "Exhibit B" is to include a list from the customer of LID's and serial
numbers of equipment to be maintained.
SECTION 3: COMPENSATION:
In full consideration of the services rendered hereunder by CII, The Citv Of Clearwater agrees to
pay CII those swns as set forth by "Exhibit B". Payment shall be made pursuant to the invoicing
provisions set forth in Section 9 of "Exhibit A".
SECTION 4: INDEMNIFICATIONS:
cn hereby agrees that I shall indemnify and save harmless The Citv Of Clearwater from any
and all liability, claims, damages, expenses, including attorney's fees, proceedings, and.causes of
action of every kind and nature, including losses incurred or suffered in consequences either of
. bodily injury to any person or damage to any property, arising out of or connected with any act
or omission of CII, its agents, employees, or any of its subcontractors, in connection with or
pursuant to this agreement. CII further agrees that it shall, at its own expense, defend any and all
claims, suits, or proceedings, which may be brought against The Ci/V 0[ Clearwater in
connection with CII. This includes, such acts or omissions of any of its employees, agents or
subcontractors, and shall satisfy, pay and discharge any and all judgments that may be entered
against The Citv 0[ Qearwater in any such action or proceeding.
SECTION 5: INCORPORATION BY REFERENCE:
All terms and provisions of "Exhibit A" and "Exhibit B"; et at not inconsistent with the specific
terms of provisions set forth herein, are hereby incorporated by this reference and made part of
this agreement.
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SECTION 6: BACKGROUND INVESTIGATION:
Law Enforcement operations are particularly sensitive due to the nature of the work and require
special handling to ensure the security of information and safety of officers involved.
Consequently all Cll employees, subcontractor employees or agents shall be expected to comply
with the following:
A) Employee shall be required to undergo a Citv Of Clearwater background
investigation prior to acceptance on the Project. The City Of Clearwater reserves
the right to reject any employee or Contractor agent if it is determined that the
Contractor or any of its employees have been convicted of a felony or misdemeanor
involving "moral turpitude" or has been released or discharged under, other than
honorable conditions, from any of the Armed Forces ofthe United States.
B) At the Contractor's expense, the fingerprints of the contractor and its employees
must be on file with The Citv Of Clearwater during the term of this agreement.
C) Background investigations shall be conducted on an ongoing basis on the Contractor
and its employees who perform this Agreement.
SECTION 7: TERMINATION OF AGREEMENT:
Either party reserves the right to terminate the agreement for breach of contract. Contract may
be canceled with sixty (60) days written notice if documentation indicates failure to perform as
specified. Notice is to include specific violations and what attempts were made to correct the
violations.
SECTION 8: LITIGATION:
Venue regarding litigation involving this agreement shall be in The Citv orClearwater,and the
laws of Florida shall prevail in any contract interpretation.
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EXHIBIT A
SPECIFICATIONS
SECTION 1: SITE OF WORK:
Fixed equipment maintenance shall occur at the site of the equipment installation where located
in The Citv Of Clearwater. Florida. Mobile and portable equipment will be repaired at the
agreed upon repair facility.
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SECTION 2: SERVICE: ..-- ,V~~ 't 'f!~dl
Service shall be defined as repairs t <<.p~ ~ "1-J
operational failures.
:rein as a resuh of normal
The communications equipment covered by this contract will not be limited to any brand of
manufacturer's equipment. It shall cover full maintenance of all communications type
. equipment identified herein that is owned and purchased and listed for maintenance coverage on
attached "Exhibit B".
en shall not be liable for costs incurred for repair and/or replacement of equipment that becomes
inoperative due to negligence on the part of the user, liquid intrusion, lightning damage, user
installations, user removals, and/or acts of God. Any component parts replaced because of abuse
on the part of the user shall be returned to The City 0/ Qearwater for examinations.
en shall not be liable for costs incurred for correcting and/or repairing backlxme damage and/or
data corruption caused by improper operations or failure of associated systems. Associated
systems are defined as any equipment used in the operations of the 800 MHz Radio System that
is not directly maintained by en.
en shall not be liable for costs incurred by maintenance that is being perfonned on associated
systems that cause damage and/or fililure of backbone operations.
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SECTION 3: CONTRACTOR FACILITES:
cn shall also maintain properly equipped mobile service units capable of diagnostics and repairs.
Maintenance and repair work from the mobile service units will normally be limited to fixed
equipment, but shall be capable of services to mobile units in field locations when deemed
necessary.
SECTION 4: ADDITIONS AND SELECTIONS:
The quantity of units to be maintained/serviced may be added to or subtracted from the contract
while the contract is in force. New units purchased in any given budget year may be added to the
contract in the month following the expiration date of the manufacturer's warranty.
All units added to or removed from service in a particular month, will be added to or ~pped
from charges to the user the following month. A letter of authorization will be required to add to
. or delete from the "Exhibit Bit. All units are to be identified with LID#, serial number, and
property number.
SECTION 5: INSTALLATION AND REM OV ALS:
All installations and removals of equipment will be made in accordance with good engineering
practices, as specified by the original equipment manufacturer. All installations and removals
will be accomplished at cn provided facilities during normal business operating hours.
Exceptions to aforementioned hours to installation or removal of fixed equipment, aircraft units,
disabled vehicles, or units deemed as special need by The Citv Of Clearwater.
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SECTION 6: COSTING AND HOURS OF SERVICE:
Maintenance pricing is to be based on:
A) Preventative maintenance/repair work to be accomplished during the hours of
8:00 a.m. to 5:00 p.m. Monday through Friday (excluding holidays). Repair or
maintenance may be accomplished at other times as deemed necessary by CIl and
agreed to by The Citv 0( Clearwater.
B) All fIXed equipment considered to be necessary to maintain public safety and
listed on ''Exhibit B" with twenty-four (24) hour coverage, will be maintained
twenty-four (24) hours a day, seven (7) days a week.
C) Repair work shall be performed as required and will take precedence over normal
equipment preventative maintenance (preventative maintenance on backbone site
excluded).
D) Preventative maintenance and repair work will normally be accomplished at the
CII facility, with the exception of fixed equipment which will be
maintained/repaired at various locations throughout The Citv Of Clearwater.
Florida. Other exceptions would be any user equipment on "Exhibit B" having
on site maintenance/repair.
E) Repairs, installations, or removals on non-essential equipment performed after
nonnal operating hours to be billed at fixed hourly rates or quoted pre-negotiated
rates. All non-essential maintenance and repairs to be contingent on CII
scheduling and en personnel availability.
7
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F) Costs of preventative maintenance and repair work shall include all parts, labor,
and travel required. The following are not included as part of the
maintenance/service contn
or batteries.
.~" tower work., coax, installations, removals,
11/t7 ~
~~I,
.>f a critical nature shall not
G)
Repair of a trouble COIl'
have work interrupted ,
lSiness day of 5:00pm.
SECTION 7: CONTRACT EXTENSION OR CANCELATION:
This shall be a one (1) year contract with a four (4) year renewal option upon mutual consent of
The Citv orQearwater and CII in writing, ninety (90) days prior to each one (1) year expiration
date. Ifna documentation is received from The Citv Of Clearwater prior to the renewal date, the
contract will automatically renew for. the next one (1) year period. The basis for this extension
will be the consumer price index (CPI) for all urban consumers of the Bureau of Labor Statistics
. most recent publication prior to contract renewal. The adjustment factor used to create price
adjustments up or down for each unit price proposed is as follows:
NEW CPI = ADJUSTMENT FACTOR X TOTAL
OLD CPI
SECTION 8: EMERGENCY SERVICES:
During a natural disaster, civil disturbance, or other county declared emergency, CII will be
required to respond within one (1) hour after notification (nature of emergency permitting) by the
Emergency Management Department and in accordance with ESF directives. Cost of service
will be at the fixed after hours rate.
.
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SECTION 9: INVOICING:
Cll invoices will indicate a transaction numbert person performing work, and summary of work
performed Invoices will indicatet (as available) equipment types, serial numbers, property
numbers, and all charges identified. Invoices shall be submitted to The Citv Of Oearwater on a
monthly basis. The Citv Of Oearwater shall submit payment within thirty (30) days of receipt
of invoices. Any disputed invoices shall be addressed in writing to Cll immediately upon receipt
of invoice(s) in question.
SECTION 10: DEFINITION OF WORK:
Cll shall repair, maintain, service, and perform preventative maintenance on all units as are listed
on the "Exhibit B" as necessary and required to meet requirements of The Citv 0( Clearwater
and factoI)' specifications.
For those pieces of communications equipment necessary to support public safety and ~sted on
"Exhibit B" as being maintained twenty-four (24) hours a day, Cll guarantees a two (2) hour
. response time for covered equipment, from the time a request is received from authorized
personnel.
Cll takes responsibility for diagnosing system problems and taking corrective action. Cll will be
a "one call" point of contact to provide all services required to support the citywide RF system
Cll will provide to The Citv Of Clearwater, Radio System Manager, a monthly report detailing
repairs and maintenance performed on the primary system equipment over the previous thirty
(30) days. Cll will also provide to The City Of Clearwater Radio System Manager, a copy of
the preventative maintenance schedule, which will be performed on the primary system
equipment.
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This agreement entered by the foUowing representatives of each agency as stated:
Communications International, InCo
S ignatW'e
Title
Printed Signature and Title
Date
The City or Clearwater
Signature
Title
Printed Signature and Title
Date
10
EXHIBIT B
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CLEARW A TER MAIN SITE
9tY Description
U nit Price
5106.00
$25.00
5250.00
$150.00
525.00
$30.00
TOTAL
11 R.F. Channels
3 Telephone Interconnect
1 Site Controller
1 Tower Top PreAmp
1 Receiver MuhiCoupler
11 Voters
CLEARW A TER BACKUP SITE
gtY Description
Unit Price
$106.00
$250.00
$150.00
$25.00
TOTAL
11
.1
1
1
R.F. Channels
Site Controller
Tower Top PreAmp
Receiver MuhiCoupler
TARPON SATELLITE RECEIVER SITE
9tY Description
U nit Price
$25.00
TOTAL
11 Satellite RX Channels
TOY TOWN SATELLITE RECEIVER SITE
Qty Description
Unit Price
$25.00
TOTAL
11 Satellite RX Channels
.
1
Extended Price
$1,166.00
$75.00
$250.00
$150.00
$25.00
$330.00
$1,996.00
Extended Price
$1,166.00
$250.00
$150.00
525.00
$1,591.00
Extended Price
5275.00
$275.00
Extended Price
$275.00
$275.00
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EXHIBIT B
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POLICE DEPARTMENT DISP A Tcn CENTER
Qty Description
Unit Price
1 System Manager
1 CEC / IMC Switch
1 Database Management (Optional)
12 Maestro Consoles
10 DVIU
$235.00
$335.00
$1,000.00
$120.00
$25.00
TOTAL
MICROW AVE AND MULTIPLEXER
Qty Description
Unit Price
2 Microwave Radio
8 Tl/MUX
$775.00
$20.00
TOTAL
.
Monthly Backbone Total of Above
59,107.00
Annual Backbone Total of Above
5109,284.00
.
2
Extended Price
$235.00
$335.00
$1,000.00
$1,440.00
$250.00
53,260.00
Extended Price
$1,550.00
$160.00
51,710.00
,
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RECEIVED
DEe 1 0 1996
BY.
'=
l~ /I/;;::!.--~
~p'~r
City of Clearwater - tf
Interdepartment Correspondence Sheet
TO: Frank Bowler, Chief Communications Technician
FROM:
Earl Barrett, Real Estate Services Manager g&--
COPIES: Fred Belzel, Controller. General Services
SUBJECT: PCS PrimeCo license agreement
~ 04': 1?j9/i~~~tf-
Attached is a copy of the above referenc license agreement ated April 8, 1996, and a
copy of the related First Amendment To License Agreement dated October 18, 1996.
DATE:
November 21, 1996
The original agreement licenses three City-owned sites to PrimeCo's use~ the amendment
reduces the number to one site: the Northeast WPC plant. A lesson has been learned here.
As you suggested, I am sending a copy to Fred Belzel for General Services administrative
files. Give me a call:if you get any more "out of the blue" calls from a wireless company;
or if I may be of any other assistance.
,,"
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LICENSE AGREEl\1ENT
THIS LICENSE AGREEMENT is made and entered into this €6 day o.
A-Prt f ' 199.Q, by and between the CITY OF CLEARWA'rER, FLORIDA <
Florida Municipal Corporation (herein, "cityll, or "Licensor"), and PC:
PRIHECO, L.P., a limited partnership pursuant to Delaware Revised Dnifon
Limited Partnership Act, having its general offices at 8875 Hidden Rive:
Parkway, suite 350, Tampa, Florida 33637 (herein, IIprimeco" or "Licenseell)
1. Premises: The City hereby grants to primeCo and Prirnec,
. hereby accepts from the City a nonexclusive license to use not more than 37=
square feet of land area situated within the chain link fenc8d boundarie~
enclosing each of the city's two (2) existing radio communications towers
and one (1) water tank now operational at the following locations:
(a) Communications Tower - operational upon the grounds of tht
City's Northeast Water Pollution control Plant, 3290 S.R. 580 and McMuller
Booth Road (herein, "WPC site") .located at Latitude 28001'54" North anc
Longitude 82042'1611 West, and;
(b) Communications Tower - operational at 1400 Young Street upor
the grounds of park property under lease by the city from the Floridc
Department of Transportation by virtue of that certain 99 year lease datec
January 19, 1976 and that certain Modification of Lease dated January 26,
1986, all being recorded in O.R. Book 6275, Pages 1880 through 1888, in the
Public Records of Pinellas County, Florida, located at Latitude 27056'42"
North, and Longitude 82047'1311 West (herein, "Missouri site"), and;
(c) North Water Tank - operational upon the grounds of the at thE
City-owned Kings Highway Recreation Center, 1751 Kings Highway (herein,
"North Water Tankll) located at Latitude 27059'09" North and Longitude
82046'4311 West;
Together with space on the communication towers and on the water tank balcon\
hand rail to mount Personal Communications Systems (herein "PCS") antenna~
arrays as specified in Paragraph 2 below and depicted in Exhibit "A}' as tc
the WPC site and in Exhibit IIBII as to the Missouri site, and upon the railinc;
of the North water tank site, as depicted in Exhibit "C", each beinc;
attached hereto and by reference made a part hereof. The land areas and the
communications towers and water tank mounting spaces are referred herein a~
the "Licensed Premises." Final site specific engineering plans and loac'
factor calculations regarding the respective sites are subject to final
approval by authorized city officials prior to commencement of an}
construction or initallation of any communications equipment by primeCo, it5
employees, agents or contractors.
2. communications Equipment: The city hereby grants permissior
to primeCo to install and operate the following described PCS communications
equipment, building, generator and associated equipment on and within each of
the Licensed Premises:
Page 1 of 1:
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(a) Three arrays. of three ant~nnas each (Antel Model SDA
185090/12)~ or equlv~lent, to be lnstalled upon each of the City
communicatlons towers with the centerline of mounting each array
at 115 feet above ground level (A.G.L.). The exact locations of
all antennas shall be supplied to the City in the form of as-
built drawings after installation. No alterations shall be made
thereafter without prior written approval by the City and
acceptance thereof by primeCo.
(b) Three arrays of three antennas each (Antel Model SDA
185090/12, or equivalent, to be installed with the antennas to be
mounted on the North Water Tank balcony hand rail assembly, at 120
feet A.G.L., more or less. The exact locations of all antennas
shall be supplied to the City in the form of as-built drawings
after installation. No alterations shall be made thereafter
without prior written approval by the City and acceptance thereof
by primeCo. .
.
(c) Flexible coaxial transmission lines between antennas and
PCS communications equipment which shall be anchored and
installed on the respective communications towers and North
Water Tank structures in accordance with good and accepted
engineering practices.
(d) Radio communications equipment consisting of transmitters,
receivers and accessories to be installed in an equipment
building located in accordance with approved final site plans
identified as Exhibits "A", "a" and "C" attached hereto. The
ground space at each site shall be 15' X 25", more or less,
within the fenced enclosures at the respective sites.
In this agreement, all of primeCo's equipment, buildings, panels, generators,
cables, wires, antennas, and accessories are referred to collectively as
"Communications Equipment" or "Communications Centers."
3. Term: The primary term of .this Agreement shall be for five (5)
years commencing on /Y}ft-'1 I , 199~ (the I1Com.rnencement Date") and
terminating at Midnight, ~,i I 30, 200....L, subj ect to extensions as set
forth in Paragraph 8 below. he commencement Date as set forth herein shall
coincide and be identical with the first day of the first month in which
primeCo intends to enter upon the Licensed Premises to commence construction
of any of its Communications Centers, but in no event later than ~ days
following the date of this agreement as first above written. PrimeCo shall
provide written notice of the intended Commencement Date to the office of the
City Attorney, 112 South Osceola Avenue, Clearwater, Florida 34616 not later
than ten (10) business days prior to said Commencement Date.
4. Rent: During the primary term of this Agreement, as rental for
the Licensed Premises, primeCo will pay the city the initial year annual sum
of THIRTY SEVEN THOUSAND EIGHT HUNDRED AND---NO/ 100' S---DOLLARS ($37,800.00),
payable in a single annual installment in advance upon the Commencement Date
of this agreement. The annual rental during the primary term and any renewal
.
Page 2 of 13
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five year term(s) will be adjusted upward by four percent (4\) annually
effective and payable upon each anniversary during the primary term and any
extensions thereof. The total initial year annual rent due hereunder is
calculated for each of the three licensed premises as follows:
site A - 3290 state Road 580............... ......... .... .$12,420
site B - 1400 Y~ung s~reet............ ... ................$12,420
site C 1751 K1ngs Hlghway.........~.... ................$12.960
TOTAL INITIAL YEAR ANImAL RENT....... . . . . . . . . .. .. . .. .. . .. $37,800
5. Use: Pr imeco wi 11 use the Licensed Premises for the purpose of
constructing and operating Communications Centers as provided herein. primeco
will abide by all local state and federal laws and obtain all permits and
licenses necessary to operate its systems. Primeco shall use the Licensed
Premises for no other purposes without the prior written consent of the City.
6. Access: primeco shall have reasonable ingress and egress to
the Licensed Premises on a 24-hour basis for the purposes of maintenance,
installation, repair and removal of said Communications Equipment. Provided
. . ,
however, that only author1zed engineers or employees of primeco, or persons
under primeCo' s direct supervision, will be permitted to enter the said
Licensed Premises, and their entry shall be for the purpose of installing,
removing, or repairing primeco's communications Equipment and for no other
purpose. primeCo shall notify the City in advance of its need to install,
remove, or repair its Communications Equipment located on ti1e Licensed
Premises, except in the case of an emergency in which event notification
shall be given as soon as reasonably possible. Access requiring entrance
into or onto the communications towers shall be coordinated with the General
Services Department of the City with respect to the communications towers,
and with the Public Works Department, Water Division, with respect to the
North Water Tank.
7. utilities at primeCo's Cost: PrimeCo shall be solely
responsible for and promptly pay all charges for electricity, telephori~, and
any other utility used or consumed by primeCo on the Licensed Premises. The
City shall advise PrimeCo and fully cooperate with any utility company
requesting an easement over and across the Licensed Premises or other lands
owned by the city in order that such utility company may provide service to
primeCo. If additional easement is required to provide such utility services
to the Missouri site, the City will cooperate with primeco in seeking the
grant of such easement from the state Department of Transportation. primeCo
shall have an electrical current meter installed at the Licensed Premises and
have the right to run underground or overhead utility lines directly from the
utility source to Primp-Co's Communications Equipment. The cost of such meter
and of installation, maintenance and repair thereof shall be paid by primeCo.
PrimeCo and the utility company providing services to-PrimeCo shall have
access to all areas of the Licensed Premises, or other lands of the City,
necessary for installation, maintenance and repair of such services;
provided, that access requiring entrance into or onto the communications
towers shall be coordinated with the General Services Department of the city.
Page :3 .of 13
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8. Extensions: primeCo shall have the option to extend this
License by a series of four (4) additional terms of five (5) years each so
long as it has abided by th~ terms and conditions of the License and is not
currently in default hereunder. If written notice to the contrary is not
delivered to the City by primeCo not less than ninety (90) days prior to the
expiration of the primary term or any extension thereof, as the case may be
it will be deemed that primeCo has elected to exercise it option to exten~
this license for an additional term, and the license term shall automatically
extend for an additional five (5) year term as provided herein. The annual
rental amount shall also automatically adjust as provided in Paragraph 4.
9. Holding Over: If PrimeCo should remain in possession of the
Licensed Premised after expiration of the primary term or any extension of
this License, without the exercise of an option or the execution by the City
and primeCo of a new license, then primeco shall be deemed to be occupying
the Licensed Premises as a tenant-at-sufferance on a month-to-month basis,
subject to all the covenants and obligations of this License and at a monthly
rental calculated at one and one-quarter (1.25) times the annual rental
scheduled to be paid as provided in Paragraph 4 divided by twelve (12). The
payment of such monthly rentalarnount shall be due and payable by the first
day of the month succeeding the expiration of the final month of the License
term previously granted by the city.
~.o. Notices: (a) Any notice shall be in writing and shall be
delivered by hand or sent by united states registered or certified mail,
postage prepaid, addressed as follows:
CITY:
City Manager
City of Clearwater
P. o. Box 4748
Clear~ater, Fl. 34618-4748
PRIMECO
PCS primeCo
8875 Hidden River Parkway
suite 350
Tampa, Florida 33637
However, where coordination with the General Services Department of the city
or the City's Public Works Department, Water Division,is required by this
agreement, notice shall be given by telephone, facsimile transmission or by
hand delivery at either of the following mailing addresses or pHysical
addresses and telephone numbers:
General Services Director
City of Clearwater
P.O. Box 4748
Clearwater, Fl. 34618-4748
Telephone:
24 Hr. Emergency:
Fax Number:
(813) 462-6777
(813) 462-6633
(813) 462-6457
Physical Address: 1900 Grand Avenue, Clearwater, Fl. 34625
Water Superintendent
Public Works Department
City of Clearwater
P.O. Box 474 8
Clearwater, Fl. 34618-4748
Telephone:
24 Hr. Emergency:
Fax Number:
(813) 462-6848
(813) 462-6633
(813) 462-6561
physical Address: 1650 North Arcturas Avenue, Clearwater, Fl. 34625
Page 4 of 13
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(b) Either party may ~~ange its address and telephone number (5) to
which notice shall be given by delivering notice of ~uch change as provided
above. Notice shall be deemed given when delivered if delivered by hand or
when postmarked if sent properly by mail. '
11. Liability and Indemnity: primeCo "agrees to indemnify and hold the
ci ty harmless from all claims (including costs and expenses of defending
agalnst such claims) arising or alleged to arise from the negligence or
willful misconduct of PrimeCo or primeCo's agents, employees or contractori
occurring during the term of this License or any exte"nsions in or about the
Licensed Premises. primeco agrees to use and occupy the Licensed Premises at
its own risk and hereby releases the City, its agents and employees, from all
claims for any damage or injury brought on by primeCo to the full extent
permitted by law. The City agrees to indemnify and save primeCo harmless
from all claims (including. cost and expenses of" defending against such
claims) arising or alleged to arise from the negligence or ~illful misconduct
of the City or the City's agents, ~mployees, contractors or other licensees
or tenants of the City occurring during the term of this License, subject to
any defense or limitation pursuant to section 768.28, Florida Statutes.
12. Termination:
(a) Either party shall have the right to terminate this License at any
time as follows:
1. By either party, if the approval of any agency, board, court, or
other governmental authority necessary for the construction or operation of
the Communications Equipment cannot be obtained, or is not obtained after due
diligence, or is revoked.
2. By either party, in the event of a material breach of any of the
provisions of this agreement, subject to Paragraph 13 below.
3. By primeCo, if PrimeCo deter~ines that the cost of obtaining or
retaining the approval of any agency, board, court, or other governmental
authority necessary for the construction or operation of the Communication
Equipment is prohibitive, or if primeco determines that the property is not
appropriate for its Communications Equipment for technological reasons,
including, but not limited to, signal interference.
4. By primeCo, in the event that any government or public body shall
take all or such part of the Licensed Premises thereby making it physically
or financially infeasible for the Licensed Premises to be used in the manner
it was intended to be used by this Agreement. However, if only a portion of
the Licensed Premises is taken, and primeCo does not elect to terminate this
License under this provision, then rental payments provided under this
License shall be abated proportionally as to the portion taken which is not
then usable by primeCo and this License shall continue.
Page 5 of 13
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5. By the City, if .tJ'le city determines that the installation 0-
operation of the Communications Equipment is detrimental to the operation 0
the city's communications equipment within and upon the respective Licensee
Premises, or the communications equipment of any other party with whom th~
city has previously entered into a lease or licensing agreement specificall~
for the construction, operation and maintenance of communications equipment-
(b) The party terminating this agreement shall give written notice o~
termination to the other party not less than thirty (30) days in advance o~
the effective date of termination. Upon termination, neither party will OWE
any further obligation under the terms of this License, except that primeCc
shall be responsible for removing all of its communications Equipment fror-
the License~ Premises and for restoring the areas occupied by PrimeCo to its
original conditions as near as practicable, save and except normal wear anc
tear and acts beyond PrimeCo's control.
(c) Upon termination of this License, the term hereby granted and all
rights, title and interest of primeco in the premises shall end and the eit]
may re-enter upon and take possession of the premises. Such tenninatioL
shall be without prejudice to the city's right to collect from primeco any
rental or additional rental which has accrued prior to such terminatior
together with all damages, including, but not limited to, the damages
specified in subparagraph (1) of this paragraph which are suffered by the
City because of primeCo's breach of any covenant under this License.
13. Defaults and Remedies:
(a) Notwithstanding anything in this License to the contrary, PrimeCo
shall not be in default under this License until:
l.
License,
City; or
In the case of a failure to pay rent or other sum~ due under this
fifteen (15) days after receipt of written notice thereof from the
2. In the case of any other default, thirty (30) days after receipt of
written notice thereof from the city; provided, however, where any such
default cannot reasonably be cured within thirty (30) days,' primeCo shall not
be deemed to be in default under the License if PrimeCo commences to cu~e
such default within said thirty (30) day period and thereafter diligently
pursues such cure to completion.
(b) In the event of Pr imeCo' s default in the payment of rentals or
primeco's failure to comply with any other material provision of this
License, the City may, at its option, terminate this License without
affecting its right to sue for all past due rentals, and any other damages tc
which the city may be entitled. Should the City be entitled to collect
rentals or damages and be forced to do so through its attorney, or by other
legal procedures, the City shall, upon receipt of a favorable ruling, be
entitled to its reasonable costs and attorneys' fees thereby incurred upor
said collection.
Page 6 of 13
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14. Taxes: primeCo shall pay annually any and all taxes that may be
levied and assessed upon .toe Licensed Premises attributable to any
improvement thereto made by Primeco, the Communications Equipment installed
thereon, or upon this agreement. If any such tax is paid by the City
primeCo shall reimburse the City for the amount of any such tax payrnent~
within sixty (60) days of receipt of sufficient documentation indicating the
amount paid and the calculation of PrimeCo's pro-rata share. Upon written
request by primeCo, the City shall furnish evidence of payment of all suc~
taxes.
,
15. Insurance: primeCo, at its expense, shall maintain in forc~ during
the terms of this License, and provide the City a certificate, or
certificates, of insurance covering the entire term of the License, or any
extension thereof, a combined single limit policy of bodily injury and
property damage insurance, with a limit of not less than $1,000,000 insuring
the City and pri~eCo against all lia~ility arisi~g o~t of the ownership, use,
occupancy or malntenance of the Llcensed Premlses and appurtenant areas,
which policy shall name City as an additional insured. The City's Risk
Manager may require primeco to provide any or all of the following additional
Insurance Endorsements upon determination of any additional risks inherent to
the City as party to this License Agreement:
a. Contractual liability coverage.
b. Personal Injury Liability coverage.
c. ~road Form Property Damage Coverage.
All insurance coverages herein provided shall:
a. Be written on an "Occurrence" basis.
b. Shall not be suspended, voided, canceled or modified except after
thirty (30) days prior written notice by certified mail, return receipt
requested, has been given to the City's Risk Management Office at the
following mailing address: Risk Manager, city of Clearwater, P. O. Box 4748,
Clearwater, Fl. 34618-4748. .,
c. certificates of Insurance meeting the specific required insurance
provisions of this License Agreement shall be forwarded to the City's Risk
Management Office and approved prior to the start of any work or possession
of the Licensed Premises.
d. All insurance policies required within this agreement shall provide
full coverage from the first dollar of exposure unless otherwise stipulated.
No deductibles will be accepted without prior approval from the city.
16. Environmental:
a. Following execution of this agreement by the City PrimeCo shall, at
its expense, contract the services of a qualified environmental firm or
individual to perform to current ASTM standards, a commercial Phase I
environmental audit of the license Premises as described in Paragraph 1(a),
Page 7 of 13
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(b) and (c) to determine if there is any basis for suspecting that hazardo'
materials or waste have been. deposited or released in or upon said premise'
If the-results of the Phase I investigation reveal to Primeco a potential-
hazardous materials or waste situation, then primeCo shall be entitled :
primeCo expense and option, to perform a Phase II environmental investigati'
meeting applicable current ASTM standards consisting of, but not limited t,
the sampling and analysis of soil, ground water, air, building and structur2
components, and any other materials that may be upon or in the property.
is mutually agreed between the parties that should theenvironrnent2
investigations herein described reveal to PrimeCo a potential or actuo
problem concerning hazardous materials or waste in or about the licen~
Premises, primeCo upon provid ing copies of the env ironmenta 1 reoorts a-
reasonable written notice to the City, shall be entitled to termi~ate th~
agreement.
b. If primeCo does not terminate this agreement as p~ovided above, :
shall provide the City with copies of all environmental reports resultir
from investigations of the license Premises not later than thirty (30) da\
preceding the Comm~ncement Date as defined in Paragraph 3. The City sha~
have the priviledge of reviewing and independently verifying the findings ar
conclusions contained in each and all of the reports provided by Primec
prior to the Commencement Date, and at its sole option, may reject tr.
reports in their entirety, and by written notice to Pr imeco as provide
herein, may terminate this agreement. If the City elect3 not to terminat
this agreement under this provision, it shall be deemed thereafter that tt
conclusions as defined in the report(s) shall establish the environmenta
baseline for'the license Premises, and the City shall defend and hold Primec
harmless from any pollution or hazardous substances or wastes established a
the environmental baseline, subject to any defense or'limitation available t
the City pursuant to Section 768.28, Flor ida statutes. Pr imeCo shal
thereafter indemnify, defend and save harmless the City , its successors
assigns, employees, contractors and agents from and against any legal c
administrative proceeding brought against the City; frOTh all demands, claims
fines, penalties, or costs occasioned by subsequent discovery of any othe
pollution or hazardous substances. or waste involving the license Premises
whether known or unknown to the City, whether based in federal, state, c
local environmental or other laws; strict liability or conmon law; from a~
damage, claim, liability or loss connected to any condition in, on, or of th
license Premises as of the date of the written report(s), the results
evaluations and conclusions contained therein; as well as during primeco'
occupancy of the license Premises and afterward as tc any continuir
violations after PrimeCo's occupancy if such violations can reasonably t
determined to have been caused directly by primeCo, its employees, agents
contractors, or any person or entity acting for or on behalf of primeCc
These covenants by primeCo to indemnify, defend and hold harmless the City
its successors, assigns, employees, contractors and agents shall extend t
and include any obligations of the City to perform remecial work ordered c
recommended by any governmental or administrative agencies. prirneco shall t
solely responsible for responding to such governmental or administrativ
agencies claims relating to contamination of the Premises as may be directl
attributable to primeco, its employees, agents, contractors, or any person c
enti ty acting for or on behalf of Pr imeCo dur ing the term of this license, c
any extension thereof, or after termination.
Page 8 of 1
.
.
.
c. Upon expiration or termination of .this license, primeCo shall at
its expense, procure an environmental audit, or audits, through' an
environmental firm or individual mutually agreeable between primeCo and the
city, in conformity with City of Clearwater Environmental Audit and property
Assessment Guidelines as may_be in existence at the time of expiration or
termination. Should the results of such studies and tests reveal any
environmental contamination of the premises in amounts and/or concentrations
exceeding minimum acceptable levels as then establ ished by appl icable
governmental authorities, or in excess of the baseline environmental
condition of the Premises as established at the license Commencement Date
whichever shall define the lowest limits of environmental contamination the~
present in, on, or of the license Premises, primeCo shall pay all costs
associated with environmental remediation of such contamination exceeding the
lowest limits established using the aforementioned criteria if such
contamination is found to be directly att~ib~table t? PrimeCo, its employees,
agents, contractors, or any person or ent~ ty act~.ng for or on behalf of
primeco during the term of or any extension of this license, or after
termination.
d. primeCo agrees to provide the city within seven (7) days of
execution by primeCo, copies of all registrations, reports, closure
assessments and certifications of financial responsibility forms as ~ay be
required to be submitted to the State Department of Environmental protection,
or its successors, pursuant to Rules of th~ Florida Administrative Code.
e. The city and primeCo mutuall~ covenant and agree that during the
term of this license, or any extension thereto, to fully comply with all
Federal, State and Local environmental laws and administrative Rules, and
that neither party will use, generate, store or dispose of any Hazardous
Material as identified and defined now or during the term or any extension of
this license in and by said laws and rules. Each party agrees to hold
harmless, defend and indemnify the other, along with their respective
successors and/or assigns, partners, affiliates, employees, contractors,
agents, and all others acting for or on behalf of either party in any ~anner
or action that may reasonably be determined to be in violation of this
provision, subject to any defense or .lirnitation available to the city
pursuant to section 768.28, Florida Statutes. .'.
17. Tests: primeCo is hereby given the right to survey, soil test,
radio coverage test, and conduct any other ip.vestigations needed to determine
if the surface and location of the Licensed Premises is suitable for
construction and installation of its Communications Equipment prior to the
Commencement Date as defined in Paragraph 3. The terms of Paragraph 11 shall
also apply.
18. Fixtures: The City covenants and agrees that no part of the
improvements constructed, erected or placed by Pr imeCo on the Licensed
Premises or other real property owned by the City shall be or become, or be
considered as being, affixed to or a part of the city I s real property; any
and all provisions and principles of law to the contrary not....ithstanding.
All improvements of every kind and nature constructed, erected or placed by
PrimeCo on the Licensed Premises shall be and remain the property of PrimeCo.
Page 9 of 13
.
.
.
19. .a.ssignment and Subletting: primeco may assign or sublet the
Licensed Premises or any par~ ~~ereof without the consent of the City only iE
primeCo remains liable for fulflllment of payments under this License and thE:::
nature of the use is not changed or the assignment is made to an affiliate 0-
primeco. All other assignments shall require the City's prior writte;,
consent, which consent shall not be unreasonably withheld.
20. Memorandum of License Agreement: Following the execution of -this
License, either party, at its sole expense, shall be entitled to file the
Membrandurn of License Agreement (attached as Exhibit "0") of record in the
public records of Pinellas County, Florida.
21. other Conditions:
(a) The City acknowledges that following the execution of this License,
PrimeCo will contact appropria~e local governmenta~ agencies for the purpose
of obtaining all building perroits and approvals, zoning changes and
approvals, variances, use permits and other governmental permits and
approvals ("Local Permits") necessary for the construction, operation and
maintenance of the Communications Equipment on the Licensed Premises. The
City agrees to fully cooperate with Primeco in obtaining the Local Permits
and, without limiting the generality of the foregoing, to execute any
applications, maps, certificate or other documents that may be required in
connection with the Local Pe=mits.
(b) Whenever under the License the consent or approval of either party
is required or a determination must be made by either party, no such consent
or approval shall be unreasonably withheld or delayed, and all such
determinations shall be made on a reasonable basis and in a reasonable
manner.
(c) The city covenants that primeCo shall, upon paying the rent and
observing the other covenants and conditions herein upon its part to be
observed, peaceably and quietly hold and enjoy the Licensed Premises during
the term of this License or as it may be extended without hindrance or
ejection by the City, any person or persons claiming under the City, or any
other licensee or tenant of the city. J.
(D) PrimeCo covenants and agrees that primeco Communications Equipment
and installation, operation and maintenance will:
(1) Not irreparably damage either the WPC or Missouri communications
towers, nor the North Water Tank structure, and accessories thereto.
(2) Not interfere with the operation of the city's radio or other
communications equipment, or that of other licensees or tenants currently
utilizing the towers or licensed or leased premises for such purposes within
100 yards of the License Premises. In the event there is interference by
primeCo, PrimeCo will promptly take all steps neces-sary to correct and
eliminate same with a reasonable period of time. If PrimeCo is unable to
eliminate such interference caused by it within a reasonable period of time,
Pr imeCo agrees to remove its antennas from the ci ty' s property and this
Agreement shall terminate.
Page 10 of 13
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.
.
(3) Comply with all applicable rules and regulations of the Federal
Communications commission and the ordinances of the City, including but not
limited to the building and electrical codes of the city. .
(e) If the Licenses Premises is damaged for any reason so as to render
it substantially unusable for PrimeCo's use, rent shall abate for such period
not in excess of ninety (90) days while the City, at its expense. restores
the City's towers and/or buildings to its condition prior to such damage.
Prov ided, however, in the event the City fails to repair the Licensed
Pre~ises with the said ninety (90) day period, PrimeCo shall have the right
to terminate this License with no further obligations hereunder.
(f) During the term of this License, the City will not grant a similar
license to any other party if such grant would in any way interfere with
Primeco's use of its Communications Equipment. In the event of any
interference arising from the installation or operation of communications
equipment at the towers sites by any other party subsequent to the
Commencement Date of this agreement, the City shall take all steps reasonably
necessary to correct and eliminate such interference within a reasonable
period of time. If the City is unable to eliminate the interference within
a reasonable period of time, the City shall be obligated to remove the
communication equipment of the other party from the towers sites. Primeco
shall not change the frequency, power or character of its equipment without
first obtaining the written consent of the City, which shall not be
unreasonably withheld. Notwithstanding any provisions of this paragraph to
the contrary, any communications equipment wi thin or upon the Licensed
Premises previously authorized to the use of any other party by the City
shall not require removal.
. , .
22. Radon Gas Notification. as required by Section 404.056(8), Florida
statutes, primeCo shall take notice of the following:
RADON GAS: Radon is a naturally 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 health unit.
23. Entire Aqreement and Bindinq Effect: This License and any attached
exhibits signed or initialed by the parties constitute the entire agreement
between the City and PrimeCo. No prior written or prior contemporaneous or
subsequent oral promises or representations shall be binding. This License
shall not be amended or changed except by written instrument signed by both
parties. Paragraph captions herein are for convenience only, and neither
limit nor amplify the provisions of this License. The provisions of this
License sha 11 be binding upon and inure to the benef it of the heirs,
executors, administrators, successors and assigns of the parties, but this
provision shall in no way alter the restriction hereon in connection with
assignment and subletting by primeCo.
Page 11 of 13
. IN WITNESS WHEREOF, the parties hereto have executed this License as of
the date and year first above .written.
.
PCS PRIMECO, L.P.
~~~
W TNESS
Print Nit c~~aLt1(2fl-
WITNESS
Print Name /~ 13t)'rJ C. J5&CJ4;:=.,e.
-~~~~
~Daniel Behuniak
Chief Operating Officer and
President, . Southeast Region
STATE OF FLORIDA :
COUNTY OF HILLS BOROUGH :
BEFORE ME, the undersigned, personally appeared Daniel Behuniak,
Chief Operating Officer and president, Southeast Region, PCS primeCo, L.P.,
a Delaware Limited Partnership, who acknowledged the foregoing instrument on
behalf of the partnership. 0-"" "
/{:.. e D~ . ,~, KE'fflC.&o<ER
/' b. :L:J:. Lly~~
Nota'ry Public r:? * ~.. ~J.an.13.1~
Print/type name: /<C'lIN e DCC /LaZ- ~"Scnd.fb1tw
~. ~ eoo-.cz:z'l566
L/'
Personally known
Provided Identification
Type of Identification Provided
OR
"
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
~ P7 ~A1
Elizth M eptula, City Manager
-commissioner
Approved as to form and
legal sufficiency:
Attest:
~~_.r
John C. Carassas
. Assistant city Attorney
city Clerk
Page 12 of 13 1.0
.
.
.
STATE OF FLORIDA
COUNTY OF PINELLAS
.
.
BEFORE ME, the undersigned, personally appeared Rita Garvey, Mayor-
Commissioner of the City of Clearwater, Florida, who executed the foregoing
instrument and acknowledged the execution thereof to be her free act and deed
for the use and purposes herein set forth, and who is personally known to me.
'IL. .
WITNESS my hand and seal this 9 day of ~-" L
0.4'<'.-1" ~.~
Y CAROLYN L BRINK
() ... COMMISSION' tI
:e ~ EXPIRES I.v. Y 22, 19*
~~ ~ IlCWOEO n-flU
~OF fI.;S:- Al\J.HT1C BONOING co..lHC.
, 199 C.
Notary Public
Print/type name:
STATE OF FLORIDA
COUNTY OF PINELLAS
.
.
.
.
BEFORE ME, the undersigned, personally appeared Elizabeth M.
Deptula, city Manager of the City of Clearwater, Florida, who executed the
foregoing instrument and acknowledged the execution thereof to be her fiee
act and deed for the use and purposes herein set forth, and who is personally
known to me.
. 'f-'- ~
WITNESS my.hand and seal this L day of .
~. ~~ - ';:t. ~
No~ary Public ~y Pzr., - CA~L'flJ L BRiNK
Pr~nt/type name: ~l:~ CO'-'.M:SSlC-:'I';or. d6304Q
'!1 ~ EXPIRES MAY 22, 1999
~,,~ AlUHT1C ~I~ IHC.
199 c.
~..
Page 13 of 13
.
.
.
IN WITNESS WHEREOF. the parties hereto have executed this License as of the dare
and yeartirst above written.
ST A TE OF FLORIDA
COUNTY OF HlLLSBOROUGH
BcllSouth Mobility. Inc.
~ral Manager
BEFORE ME, the undersigned. personally appe3red Steve Gray Vice president and
General Manager, BellSouth Mobility. Inc., a Georgia Corporation, who acknowledged the
foregoing instrument on behalf of the Corporation.
(J}1A!V ) I ~.d '
Notary Public .',.. _" _I(
PrintfType Name: C p.4tt Lt'S JC LP It, ~) \...
~'H'"
" .."'.... ~" I'U.", .", T N A!:IV JR. '
~'~'fO'::'>j.... ~. '^"""""
F.:~:~ I.f( CCt.NSSlON I CC410156 EXPIRES
~ q.~ "'-'--"- 'IT
~.....~l """an_. 1998
'-9::.::-;' IDaD 1lfIJ TROV FAIN INStJWa, JC.
Personally known OR
Provided Identification P- Type of Identification Provided D l--
BJ
issioner
Approved as to form and
legal sufficiency:
AtteSt:
~,
CITYOFC~WATIffi,nOIDDA
Michael Roberto. City Manager
~~
.,....-;- . <r"'a-
lohn C. Carassas
Assistant City Attorney
hia E. Goudeau. City Clerk
STATE OF FLORIDA
. COUNTY OF PINELLAS
BEFORE ME, the undersigned, personalty appeared Rita Garvey. Mayor-Conunissioner
of the City of Clearwater. Florida. who executed the foregoing instrument and acknowledged the
execution thereof to be her free act and deed for the use and purposes herein set forth, and who is
~rsonally known to me.
"*-
WITNESS my hand and seal this ~5 day of ~ . 199!
~~-~
N~tary Public ....~"t P&d' CAROLYN L. BRINK
Pnnttrype Name: () (" COMMI ION' cc ~e3040
~t'" if! eXPIRES MAY 22.1959
~ t;:;~. ec::~cO li-lAfJ
OF f\) ATlANTIc SGNDiNG CO.. INC,
.
.
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, the undersigned. personally appeared Michael Roberto, City Manager of
the City of Clearwater, Florida. who executed the foregoing instrument and acknowledged ~
execution thereof to be her free act and deed for the use and purposes herein set forth, and who is
personally known to me.
)oL. . i"'\ _ ,,_ (/
WITNESS my hand and seal this ~ day of c;.w- ,199.,!.
Notary ~ ;jJ. ~
Printrrype Name:
'I' CAROLYN L. BRINK
,SI . \';:. COMYJSSIOt.; , CC 46J040
~ i5 eX?I~SS MAY 22, 1999
~ ~ 8QNOEO rrW,/
or f\) Al1.ANTIC BONDING CO.. INC.
,."
'~e'::l....
~L~
..r" .
Item ,
CLEARWATER CITY COMMISSION
Agenda Cover Memorandum
Meetl~ Date
.JUBJECT: License Agreement tor Personal Communications Systems installations.
RECOMMENDATION/MOTION: Approye a License Agreement with PCS PrimeCo, L.P, c=
rDelaware Limited Partnership, licensing to its non-exclusive use Cit~
. communications towers at 3290 state Road 580 and 1400 Young street, and the Nord,
Water ~ank at 1751 Kings Highway, for the purposes of installing and operatinc
Personal communications Systems ("PCS") equipment for an initial 5 year term;
with the option'to automatically extend for 4 additional terms of 5 years each,
unless the city is timely notified to the contrary, providing for initial year
lump sum annual rent payment of $37,800 payable upon the License commencement
date, increasing 4 % annually thereafter, due and payable in single annual
installments upon each anniversary of the commencement date,
au and that the appropriate officials be authorized to, execute same.
SUMHARY:
~ PCS primeCo, L. P. ("primeCo") ,is a consortium of major communications
companies: Bell Atlantic PCS, Inc., NYNEX PCS, Inc., Airtouch Communications and
U.S. West, Inc. primeCo proposes to install PCS equipment on three City
structures: the communications towers at the Northeast Treatment Plant, the
communications tower just east of Missouri Avenue at 1400 Young street on land
under 99 year lease to the city by the Florida Department of Transportation until
2075, and on the City's North water Tank at the Kings Highway Recreation Center,
1751 Kings Highway.
. Installation at each site will include ground base communications equipment
.n a concrete pad not to exceed 15' X 25' (375 square feet) linked by coaxial
cable to 9 antennae in 3 arrays at structure elevations of 115 to 120 feet
(Exhibits "A" - "C"). The City would provide 24 hour access to the sites if
PrimeCo coordinates with the responsible city departments.
~ The initial 5 year term of the License will commence not later than 60 days
fOllowing City commission approval. Prim~Co shall establish the commencement
date by providing written notification to the office of the city Attoihey at
least 10 days before it wishes to access the sites to commence construction.
~ The License ~ill automatically extend for up to 4 additional 5 year terms
unless primeco gives the city written notice to the contrary not less than 30
days prior to expiration of the then current term.
Ccontiroed)
.
I Reviewed by:
I Legal /e
I Budget NIA
I purChaSing~
I Risk H9mt.-f:jJfL--
liS NIA
I AeM
I
I
I ENG.
I
I OTHER
I Subni tted by:
lei ty Manager
I
PCsp,im...Agn
Originating Dept.
Engineering ,1
,iCl{- .
User Dept. t. 1.1 na
General Services ~
Publ ic \lorles .71A
Advertised:
COlIIlI i 5S i on Ac t i on
Flrding Source:
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I Attachments:
I lIcense Agreement with
I Exhibits "A" through "0"
I locator Map. all sites
I
I
I
,
Approved
Approved
w/cooditions _____
Date:
Capt. 11Tp.
operating
Other
Denied
Cont'd to
!r~
Paper:
Appropriation Code(s)
Not required X
Affected parties
notified
Not required X
Page 2 - Agenda Cover Memorandum
. primeCo License Aqreement
- ~ Under the License Agreement, rent is payable in an annual lump sum installment
due upon commencement; and upon "each anniversary thereafter. Initial year rent
is established at $37,800 based on $12,240 for each communications site anc
.$12,960 for the North Water Tank s.ite, each calculated .at $1.00 per foot abovE.
ground level per month for each installed antennae, with installation of ~
antennae at approximately 115 feet on each of the communications towers and ~
antennae at approximately 120 feet on the water tank. The annual rent adjustment
established in the License is 4%. Total rent due the City durirg the initial ~
year term is $204,736.99. Should primeco exercise all extension options for c
full 25 years, total rent to the City will be $1,574,215.10.
~ Other key provisions of the License include:
+ primeco will be responsible for all maintenance and utilities related tc
its installations, all taxes either the License or the PCS improvements
may create, combined single limit bodily injury. and property damage
insurance of not less than $1,000,000 with the City as additional insured,
performing environmental audits prior to commencement and upon final
termination with responsibility for any degradation attributable to its
installations during the License .term.
+ primeCo covenants that its installations will not interfere with any Cit}
communications equipment, or that of others currently operating under an}
agreement with the city.
+ The City will be responsible for maintaining its communications towers and
the North Water Tank during the License term, and any extensions; and
agrees not to license their use for any other communications installations
that would interfere with primeco operations.
.
+ primeCo may terminate the License if governmental approvals ar~ denied, or
later revoked; if it determines construction or operational costs are
prohibitive, for technological reasons such as, but not limited to, signal
interference, or in the event of condemnation to the extent operations
would no longer be feasible.
+ The City may terminate the License only upon material unremedied default
of any License provisions by primeCo.
+ The City agrees it will cooperate as appropriate to obtain governmental
approvals and permits necessary for construction and operations.
+ primeco is responsible for removing all of its equipment upon final License
termination, and for site restoration.
+ Either party may record a Memorandum of License upon the public records (by
the City, as per Exhibit "0")
.
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ELEVATION
$(;,I(.t . 100 1 10 SCotU:
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ANTENNA INST N.LA TION
WATER TANK SKETCH
ELEVATION
BY: OJ< 03-07-96
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BY: OJ( OJ.O]-96
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.
TO: Construtlion Manl&en
fROM: PJurdo toot
DATE: 11122J9S
RE: Rf Conligunlion
Tower Hel&hu:
90 reel
100 feel
120 reel
140 r~l
160 reel
180 red
200 reel
220 reel
240 reel
260 reet
Azimulh
A-IO. B-130 . C-250 degree
AntennA types.
90 degree directional antenna with 17.5 dBigain.(IS.S dBd)
connecto~- 7/16 DIN
Antenna model DB980B80E-M
. Band of OptntioD : 18SG-l990 Mhz
.DownTiJt- yes
Cable Type:
718 - 0- 120
I 1/4 - 120 to 140
1 5/8 - 140 and up
Color codini for Cable "
A-RED
B- BLUE
C- GREEN
Number or Aotcoou
lotal 6 - 2 per S<<tor (now)
total 9- 3 per sector ror future
An(enDIs separ:atloD
un PJghl
Rx------12 ree! -Rx/Tx
.
.
( rKl: 1710-1880 MHz I
DB980H9Q(E)- -M: lS5Q.1990 MHz
90. I 15 dBd Q;rectlonal Antenna
~o<s., Numb" I 08i&Ot130-I(LJl.f 08'&O~~l'l<lJW ~l.j
Te<mliHllOft T~ N.relft~f. 1 7/" DIN
F,tqutl'\cy Ibng. oKl; 1710. 18S0 MHt (}~mj
.... 18~.lmMKl
. .
G.aln 1508401 17.1dG1 "t.3 :
Hull fill F"~llowtl ",,1 ia IU4 INn 18 dS ~ -
I 'ron'I trIU. rlf1l upptt s~ ~
Sl.l~.....std.
vSWR < 1.S:1
~ am'l'fld\h . HotU~U1 W ~ 7.0"
~d IS Itom mul ; V."lcal 5.S' 1 o.~.
'FrontlO s~~ ~Io ~25~
PolallUUOi\ : V.rtleaI.
Un. I/I9IJt ~....., 2SO W~tta
.t~f~l~ I PCN, PCS. OCS 1800
We'~1't1 : 8.5 ~ (4.0 k9)
WInd Ar.. I 3,3 :tt (.3 1 mil ,.... "
, 31 ~ (s.a2N) 59.4 ~ (at 200 mph) E E
WYnd LOld "E bE
L(,J:. WInd ~ ' &.5 mpll (260 :rm..") l.O---
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&.llt.~ I Aen9';IDr Sa~ Pus. AAimtnc.rn ~ It)
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prepared by , return tOI
EArl Barrett
Engineering Admlnl.tratlon
city of Clearwater
P. o. Box 4748
Clearwater, Fl. 34618-4748
EXHIBIT "D"
MEMORANDUM: OF LICENSE
KNOW ALL MEN BY THESE PRESENTS THAT:
THIS MEMORANDUM OF LICENSE is made this day of
, 1996, by the CITY OF CLEARWATER, FLORIDA,
a Florida Municipal corporation.
WIT N E SSE T H:
WHEREAS, the CITY OF CLEARWATER, FLORIDA ("City"), whose
address is P. o. Box 4748, Clearwater, Florida 34618-4748 has
licensed to pes PRIMECO, L. P., a Delaware Limited Partnership,
whose address is 8875 Hidden River Parkway, suite 350, Tampa,
Florida 33637 (nprlmeCo"), and PrimeCo has accepted a license from
the city, upon. and subject: tothe.terms,..covenants,'.: conditions, "
limitations and restrictions contained in that certain License
Agreement dated . , 1996 (-License") between
the parties, that certain real property situated in Clearwater,
pinellas County, Florida, more particularly described in Exhibit A
attached hereto ("Licensed Premises").
~,
The Term of the License is for five (5) years, commencing on
, 1996, and ending , 2001,
subject to primeCo's option to extend the tent for four (4)
additional periods of five (5) years each upon the terms and
conditions set forth in the License.
The Rent and other obligations of the city and prlmeCo are set
forth in the License, t.o which reference is made for further
particulars. In the event of any conflict betveen the terms and
provisions of the License and those contained in this Memorandum,
those contained in the License shall govern and be controlling.
Page 1 of J
-
t "I
.
IN WI'fNESS WHEREOF, the City has executed and acknowledged
this Memorandum as ot the date first above written.
Countersigned:
CITY OF CLEARWATER, FLORIDA
Rita Garvey
Mayor-Commissioner
Approved as to form and
legal sufficiency:
By:
Elizabeth K. Deptula
City Manager
Attest:
cynthia- E. Goudeau
city Clerk
John Carassas
Assistant city Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
.
.
.
.
.
BEFORE ME, the undersigned a'lthority, personally appeared Rita
Garvey, as Mayor-Commissioner of the city of Clearwater, Florida,
who executed the foregoing instrument and acknowledged the
execution thereof to be her free act and deed for the use and
purposes therein set forth, and who is personally known to me.
WITNESS my hand and seal this ____ day of
1996.
Notary Public - state of Florida
Print/type name:
#
STATB.OF FLORIDA
COUNTY OF PINELLA8
.
.
:
BEFORE ME, the undersigned authority, J:.ersonally appeared
Elizabeth M. Deptula, as city Manager of the city of C~eantater,
Florida, who executed the foregoing instrument and ackno'tlledged the
execution thereof to be her free act and deed for the use and
purposes therein set forth, and who is personally known to me.
WITNESS my hand and seal this ____ day of
1996.
Notary Public - State of Florida
Print/type name:
.
Page 2 of 3
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EXHIBIT A
License Premises
R.B: AGREE1".ENT Br , BEnlEKN THE CITrOF CLE.ARJlA:rER, FLORIDA AllD PRIHECO, L.P.
Non-exclusive use of not more than 375 square feet of land in
the immediate vicinity of structures described below, situate and
being within the chain link fenced boundaries enclosing each of the
said facilities owned and/or controlled by the City of Clearwater,
pinellas County, Florida: .
1. COMMUNICATIONS TOWER - Operational upon the grounds of
the City's Northeast Water Pollution Control Plant, 3290 S.R. 580
and McMullen Booth Road, Clearwater, Florida, located at Latitude
28001'54" North and Longitude 82042'16" West.
2. COMMUNICATIONS TOWER - Operational upon grounds under
lease to the City of Clearwater by the Florida Department of
Transportation at 1400 Young street, Clearwater, Florida, located
at Latitude 27056'42" North, and Longitude 82047'13" West.
.
3. NORTH WATER TANK - Operational upon the grounds of the
ci ty 's Kings Highway Recreation Center, 1751 Kings Highway,
Clearwater, Florida, located at Latitude 27059' 09" North and
Longitude 82046'43" West.
"
.
Page 3 of 3
.
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.
LICENSE AGREEMENT
THIS UCENSE AGREEMENT is made and entered into this ~'1J day of 1'I1I,f( rI ,
1998, by and between the CITY OF CLEARWATER, FLORIDA, a Florida Municipal
Corporation (herein, "City", or "Licensor"), and BeIlSouth Mobility, Inc., a Georgia
Corporation, having its general offices at 5201 Congress Avenue, Boca Raton, Florida 33487
(herein, "BellSouth Mobilicy" or "Licensee").
1. Premises: The legal description of the site is attached as exhibit" A". Measured
from ground level, BeIlSouth Mobility, Inc. will have reserved for it the space on the structure
from 235 feet to 245 feet above ground level (A.G.L.). If required for technological reasons,
BellSouth Mobility, Inc. must fIrst obtain wrinen approval from the City to move its location on
the structure to space other than this area reserved for it if such other space has not been rented to
a different tenant who is using it.
Together with space on the communication tower to mount Personal Communications Systems
(herein "PCS") antennae arrays as specified in paragraph 2 below and depicted in Exhibit" A"
each being attached hereto and by reference made a part hereof. The land area and the
communication towetare referenced herein as the "Licensed Premises". Final site specific
engineering plans and load factor calculations regarding the respective site is to be provided by
BeIlSouth Mobility, Inc., at BellSouth Mobility, Inc. 's expense and is subject to fInal approval by
authorized City officials prior to commencement of any construction or installation of any
communications equipment by BellSouth Mobility, Inc., its employees, agents, or contractors.
2. Communications Equipment: TbeCity, hereby. grants permission to BellSouth
Mobility, Inc. to install and operate' the following descnbed BellSouth MObility,' Inc.
communications equipment, building. generator and associated equipment on and within the
Licensed Premises:
(a) 'Three arrays of two antennas each (Andrew model PCS19HA-l1015-2DG), or
equivalent. to be installed upon the City communications tower with the centerline of mounting
the array at 240 feet above ground level (A.G.L.). The exact locations of all antennas shall be ,.
supplied to the City in the form of as-built drawings after installation. No alterations shall be
made thereafter without prior wrinen approval by the City and acceptance thereof by BellSouth
Mobility, Inc.
(b) Radio communications equipment consisting of transmitters, receivers and accessories
to be installed in an equipment building located in accordance with approved fmal site plans The
ground space shall be 15' X 25', more or less. within the fenced enclosures at the respective
sites.
In this agreement, all of BellSouth Mobility, Inc. 's equipment, buildings, panels, generators,
cables, wires, antennas, and accessories are referred to collectively as "Communications
Equipment" or 'Conununications Centers. "
Page 1 of 11
. 3. Thrm: The primary term of this Agreement shall be for five (5) years
conunencing on H/f,fctf -'-; 1998 ( the "Commencement Date") and terminating at Midnight, _
/'1t'{1( (It I ,2003. subject to extensions as set forth in Paragraph 8 bc:low. The Commencement
Date as set fOM herein shall coincide and be identical with the first day of the first monch in
which BellSouth Mobility, Inc. intends to enter upon the Licensed Premises to commcru
construction of any of its Communications Centers, but in no event later than 60 days following
the date of this agreement as nrst above written. BellSouth Mobility, Inc. shall provide wrlnen
notice of the intended Commencement Date to the office of the City Attorney, 112 South Osceola
Avenue, Clearwater, Florida 33756 Dot later than ten (10) business days prior to said
Commencement Date.
4. Rem: During the primary term of this Agreement, as rental for the Licensed
Premises, BeIlSouth Mobility. Inc. will pay the City the initial year aMual sum of TWENTY
ONE THOUSAND SIX HUNDRED AND---OO/l00'S--DOLLARS ($21,600.00), payable In
four equal installments of FIVE THOUSAND FOUR HUNDRED AND-"--QO/lOO's-DOLLARS
(55.400.00) in advance upon the Commencement Date of this agreement. The annual rental
during the primary tenn and any renewal five year tenn(s) will be adjusted upward by four
percent (4 %) annually effective upon each anniversary during the primary term and any
ext~nsions thereof and payable in quarterly installments. The total initial year annual rent due
hereunder for the communication tower at 3290 State Road 580 and McMullen Booch Road,
Clearwater, Florida is $21,600.00 '
.
5. Use: BellSouth Mobility, Inc. will use the Licensed Premises for the purpose of
constructing and operating a Communications Center as provided herein. BelISouth Mobility I
Inc. will abide by all local, state and federal laws and obtain all permits and licenses necessary to
operate its system. BelISouth Mobility. Inc. shall use the Li~nsed Premises for no other
purposes without the prior written consent of the City.
6. Access: BellSouth Mobility, Inc. shall have reasonable ingress and egress to the
Licensed Premises ona 24-hour basis for the purpo'sc of maintenance, installation, repair and.,
removal of said Communications Equipment. Provided, however, that only authorized engineers
or employees of BellSouth Mobility, Inc., or persons under BeIlSouth Mobility, Inc. 's direct
supervision, will be permitted to enter the said Licensed Premises, and their entry shall be for the
purpose of installing, removing. or repairing its Communications Equipment and for no ocher
purpose. BellSouth Mobility, Inc. shall nocify the City in advance of its need to install, remove,
or repair its Communications Equipment located on the Licensed Premises, except in the case of
an emergency in which event notification shall be given as soon as reasonably possible. Access
requiring entrance into or onto the communications towers shall be coordinated with the General
Services Department of the City.
.
Page 2 of 11
.
7. Utilities at BeIlSouth Mobility. Inc.'s Cost: BellSou~ Mobility, Inc. shall be solely
responsible for and promptly pay all charges for electricity, telephone, and any other utility used
or consumed by BellSouth Mobility, Inc. on the Licensed Premises. The City shall advise
BellSouth Mobility, Inc. and fully cooperate with any utility company requesting an easement
over and across the Licensed Premises or other lands owned by the City in order that such utility
company may provide service to BellSouth Mobil~ty, Inc. BellSouth Mobility, Inc. shall have
electrical current meter installed at the Licensed Premises and have the right to run underground
-or overhead utility lines directly from the utility source to BellSouth Mobility. Inc.' s
Communications Equipment. The cost of such meter and of installation, maintenance and repair
thereof shall be paid by BellSouth Mobility, Inc. BellSouth Mobility, Inc. and the utility
company providing services to BellSouth Mobility, Inc. shall have access to all areas of the
Licensed Premises, or other lands of the City, ~sary for installation, maintenance and repair
of such services; provided, that access requiring entrance into or onto the communications towers
shall be coordinated with the General Services Department of the City.
8. Extensions: BellSouth Mobility, Inc. shall have the option to extend this License
by a series of four (4) additional terms of five (5) years each so long as it has abided by the terms
and conditions of the License and is not currently in default hereunder.
City or BellSouth Mobility, Inc. may at any time after the expiration of the first renewal term
terminate this agreement for convenience by giving the other party one hundred eighty (180) days
written notice.
.
BellSouth Mobility, Inc. agrees to provide City written notice of its intent to extend this
agreement no less than 90 days prior to the expiration of the primary term or any extension
thereof. The annual rental amount shall also automatically adjust as provided in Paragraph 4.
9. Holding Over: If BellSoutli Mobility, InC. shoUld" reIIiain in possession of the
Licensed Premised after expiration of the primary term or any extension of this License, without
the exercise of an option or the execution by the City and BellSouth Mobility, Inc. of a new
license, BellSouth Mobility, Inc. shall be deemed to be occupying the Licensed Premises as a
tenant-at-sufferance on a month-ta-month basis, subject to all the covenants and obligations of
this License and at a monthly rental calculated at one and one-qumer (1.25) times the annual
rental scheduled to be paid as provided in Paragraph 4 divided by twelve (12). The payment of
such monthly rental amount shall be due and payable by the first day of the month succeeding th~
expiration of the final month of the License term previously granted by the City. .
10. Notices: (a) Any notice shall be in writing and shall be delivered by hand or sent
by United States registered or certified mail, postage prepaid, addressed as follows:
CITY:
City Manager
City of Clearwater
P.O. Box 4748
Clearwater, Florida
BellSouth Mobility, Inc.
5201 Congress Avenue
Boca Raton, Florida, 33487
Attn.: Network R. E. Manager
~
( 5~ I) "] C / - 0 j s 7
/.~./vv~ F~ (set) ?? S - 3503
~~~~
34618-4748
.
Page 3 of 11
(' ~ ;= ~~ (.f C /) 19 S- - _~~- L.f J
.'
.
.
.
However, where coordination with the General Services Department of the City is required by
this agreement, notice shall be given by telephone. facsimile transmission or by hand delivery at
either of the following mailing addresses or physical addresses and telephone numbers:
General Services DireCtor
City of Clearwater
P.O. Box 4748
Clearwater,FL 33758-4748
Telephone:
24 Hr. Emergency:
Fax Number:
(813) 462-6777
(813) 462-6633
(813) 462-6457
Physical Address: 1900 Grand Avenue, Clearwater, FL 33765
(b) Either party may change its address and telephone number(s) to which notice shall be
given by delivering notice of such change as provided above. Notice shall be deemed gi\'en
when delivered if delivered by hand, or when postmarked if sent properly by mail.
11. Liabilities and Indemnity: BellSouth Mobility, Inc. agrees to indemnify and hold
the City harmless from all claims (including costs and expenses of defending against such claims)
arising or alleged to arise from the negligence or willful misconduct of BellSouth Mobility. loc.
or BellSouth Mobility, Inc. 's agents. employees or contractors occurring during the term of this
License or any extensions in or about the Licensed Premises. BellSouth Mobility, Inc. agrees to
use and occupy the Licensed Premises at. its own risk and hereby releases the City, its agents and
employees, from an claims for any damage or injury brought on by BellSouth Mobility. Inc. to
the full extent permitted by law. The City agrees to indemnlfy and save BellSouth Mobility, Inc.
harmless from all claims (including costs and expenses of defending against such claims) arising
or alleged to arise from the negligence or willful misconduct of the City or the City's agents.
employees. contractors or other licensees or tenants of the City occurring during the term of this
License. subject to any defense or limirarion pursuant [0 Section 768.28, Flurida Stacutes.
12. Tennination:
.~..
(a) Either party shall have the right to tenninate this License at any time as follows:
1. By either party. if the approval of any agency, board, court. or other governmental
au!hority necessary for the construction or operation of the Corrununications Equipment cannot
be obtained after due diligence, or is revoked.
2. By either party, in the event of a maceriaI breach of any of the proviSions of this
agreement, subject to Paragraph 13 below.
3. By BellSouth Mobility, Inc.. if BeIlSouth Mobility, Inc. determines that the cost of
obtaining or retaining the approval of any agency, board, court, or other governmental authority
necessary for the construction or operation of the Conununication Equipment is prohibitive. or If
BellSouth Mobility, Inc. determines that the property is not appropriate for its Communications
Page 4 of 11
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.
.
Equipment for technological reasons, including, but not limited to, signal interference.
4. By BellSou.th Mobility, Inc., in the event that any government or public body shall
take all or such part of the Licensed Premises thereby making it physically or fInancially
infeasible for the Licensed Premises to be used in the manner it was intended to be used by this
Agreement. However, if only a portion of the Licensed Premises is taken, and BeIlSouth
Mobility, Inc. does not elect to terminate this License under this provision, then rental payments
provided under this License shall be abated proportionally as to the portion taken which is not
the'n usable by BellSouth Mobility, Inc. and this License shall continue.
5. By the City, if the City determines that the installation or operation of the
Communications Equipment is detrimental to the operation of the City's communications
equipment within and upon the respective Licensed Premises, or the communications equipment
of any other party with whom the City has previously entered into a I~ or licensing agreement
specifically for the construction, operation and maintenance of communications equipment.
(b) The party terminating this agreement shall give written notice of termination to the
other party not less than thirty (30) days in advance of the effective date of termination. Upon
termination, neither party will owe any further obligation under the terms of this License, except
that BellSouth Mobility, Inc. shall be responsible for removing all of its Communications
Equipment from the Licensed Premises and for restoring the areas occupied by BellSouth
Mobility, Inc. to its original conditions as near as practicable, save and except normal wear and
tear and acts beyond BellSouth Mobility, Inc. 's control.
(c) Upon termination of this License, the term hereby granted and all rights, title and .
interest of BellSouth Mobility, Inc. iri the premises shall end and the City may re~nter upon and
take possession of the premises. Such termination shall be without prejudice to the City's right to
collect from BellSouth Mobility, Inc. any rental or additional rental which has accrued prior to
such termination together with all damages, including, but not limited to, the damages specified
in subparagraph (1) of this paragraph which are suffered by the City because of BellSouth
Mobility, Inc.'s breach of any covenant under this License.
13. Defaults and Remedies:
,.
(a) Notwithstandmg anything in this License to the contrary, BeIlSouth Mobility, Inc.
shall not be in default under this License until:
1. In the case of a failure to pay rent or other sums due under this License, fifteen (15)
days after receipt of written nOlice thereof from the City; or
2. In the case of any other default, thirty (30) days after receipt of written notice thereof
from the City; provided, however, where any such default cannot reasonably be cured within
thirty (30) days, BellSouth Mobility, Inc. shall not be deemed to be in default under the License
if BellSouth Mobility, Inc. commences to cure such default within said thirty (30) day period and
Page 5 of 11
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thereafter diligently pursues such cure to' completion.
(b) In the event of BeIlSouth Mobility, lnc.'s default in the payment of rentals or
BellSouth Mobility, Inc. 's failure to comply with any other material provision of this License, the
City may. at its option. terminate this License without affecting its right to sue for all past due
rentals. and any other damages to which the City may be entitled. Should the City be entiUed to
coJlect rental or damages and be (orced to do so through its anorney, or by other legal
procedures, the City shall, upon receipt of a favorable ruling, be entitled to its reasonable costs
and attornei s fees thereby incurred upon said collection.
14. Taxes: BellSouth Mobility, Inc. shall pay annually any and all taxes that may be
levied and assessed upon the Licensed Premises attributable to any improvement thereto made by
BellSouth Mobility, Inc., the Conununications &luipment installed thereon, or up<ln this
agreement. If any such tax is paid by the City, BellSouth Mobility, Irx:. shall reimburse tlu: City
for the amount of any such tax payments within sixty (60) days of receipt of sufficient
documentation indicating the amount paid and 'the calculation of BellSouth Mobility, Inc. 's pro-
rata share. Upon written request by BellSouthMobil ity, Tnc.. the City shall furnish evidence of
payment of all such taxes.
15. Insurance: BellSouth Mobility, Inc., ae its expense, shall maintain in force during
the tenns of this License, and provide the City a certificate, or certificates. of insurance covering
the entire term of the License. or any extension thereof, a combined single limit policy of bodily
injury and property damage insurance, with a limit of noe less than $1,000,000 insuring the City
and BellSouth Mobility, Inc. against all liability arising out of the oWnership,' uSe: occupancy' or"
maintenance of the Licensed Premises and appurtenant artas, which policy shaH name City as an
additional insur~. The City's Risk Manager may require to provide any or all of the following
additional Insurance Endorsements upon detennination of any additional risks inherent to the City
as party to this License Agreement:
a. Contractual Liability coverage.
J.
b. Personal Injury Liability coverage.
c. Broad Fonn Property Damage Coverage.
All insurance coverages herein provided shall:
a. Be written on an "Occurrence- basis.
b. Shall not be suspended, voided, canceled or modified in a way that affects the City
of Clearwater except after thirty (30) days prior written notice by certified mail, return receipt
reques led , has been given to the City's Risk Management Offlce at the following mailing address:
Risk Marulger. City of Clearwater, P.O. Box 4748. Clearwater, FL 33758-4748.
Page 6 of 11
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c. Certificates of Insurance meeting the specific required insurance provisions of this
License Agreement shall be forwarded to the City's Risk Management OffLCe and approved prior
to the start of any work or possession of the Licensed Premises.
d. All in'iurance policies required within this agreement shall provide full coverage
from the first dollar of exposure unless otherwise stipulated. No deductiblc:s will be accepco:i
wi,1hout prior approval from the City.
16. :Environmental:
a. Following execution of this agreement by the City, BcIJSouth Mobility, Inc. shall.
at its expense, contract the services of a qualified environmental firm or individual to perform to
current ASTM standards, a commercial Phase I envirorunental audit of the license Prt:mises as
described in Paragraph 1(a), (b) and (c) to detennine if there is any basis for suspecting that
hazardous materials or waste have been deposited or released in or upon said premises. If the
results of the Phase I investigation reveal to, BeIlSouth Mobility, Inc. a potentially hazardous
materials or waste situation, then BcllSouth Mobility. Inc. shall be entitled, at BellSouth
Mobility, Inc. expense and option. to perform a Phase II environmental investigation meeting
applicable current ASTM standards consisting of. but noe limited to, the sampling and analysis of
soil, ground water, air, building and structural components, and any other materials that may be:
upon or in the property. It i.s mutually agreed between the parties that should the envirorunental
investigations herein described reveal to BellSouth Mobility, Inc. a potential or actual problem
concerning hazardous materials or waste in or about the license Premises, BeHSouth Mobility,
Inc. upon providing copies of the environmental repo~ and reasonable written notice to the City,
shall be entitled to terminate this agreement.
b. If BellSouth Mobility, Inc. does not terminate this agreement as provided above. it
shall provide the City with copies of all environmental reports resulcing from investigations of the
license Premises not later than thirty (3D) days preceding the Commencement Date as deflned in
Paragraph 3. The City shall have the privilege of reviewing and independently verifying the
findings and conclusions contained in each and all of the reports provided by BellSoulh Mobility, ,.
Inc. prior to the Commencement Date, and at its sole option. may reject the reportS in their
entirety, and by written notice to BellSouth Mobility, Inc. as provided herein. may renninate this
agreement. If the City elects not to tenninate this agreement under this provision, it shall be
deemed thereafter that the conclusions a5 defined in the report(s) .shall establish the envirorunen1al
baseline for the license Premises, and the City shall defend and hold BellSouth Mobility, In:.
harmlt:ss from any pollution or hazaruous substances or wastes established as the environmental
baseline, subject to an)' defense or limitation available to the City pursuant to Section 768.28.
Florida Statues. BellSouth Mobility, Inc. shall thereafler indemnify, defend aoo save harmless
the City, it successors, assigns, employees, contractors and agents from and against any legal or
administrative proceeding brought against the Ciry; from all demands, claims, tines, penaHie~ or
costs occasioned by subsequent discovery of any other pollution or hazardous substances or waste
involving the license Pn:mises caused by BellSouth Mobility ,Inc.. whether known or unknown
to the City, whether based in federal, state, or local cnvirorunental or other lawsj strict liability
Page 1 of 11
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or conunon law; from any damage, claim, liability or loss connected to any condition in, on, or
of the license Premises as of the date of the written report{s), the results, evaluations and
conclusions contained therein; as well as during BellSouth Mobility, Inc.' 8 qccupar.:y of the
license Premises and afterward as to any continuing violatioIU after BS's occupancy if such
violations can reasonably be determined to have been caused directly by BellSouth Mobility.
Inc., its employees, agents, contractors, or any person or entity acting for or on behalf of
BcllSouLh Mobility, Inc.. These covenanrs by BeUSouth Mobility, me. to indemnify, defend and
hold harmless the City. it! successors. assigns. employees. contractors and agents sltall extend to
and include any obligations of the City to perform remedial work ordered or reco~nded by
any goverrunenral or administrative agencies. Bel1South Mobility, Inc. shall be solely ~-poIUible
for responding to such governmental or administrative agencies claims relating to contamination
of the Premises as may be directly attributable to BellSouth Mobility. Inc., Its employees, agents,
contractors, or any persons or entity acting for or on behalf of BeIlSouth Mobility, Inc. during
the term of this license, or any extension thereof, of after termination.
c. Upon expiration or tennination of this license, Bel1Sourh Mobility, Inc. shall, at
its expense, procure an environmental audit, or audits, through an environmentalfinn 0['
individual mutually agreeable between BeUSouth Mobility, Inc. and the City, in conformity with
City of Clearwater Environmental Audit and Property Assessmern Guidelines as may be in
existence at the time of expiration or termination. Should the results of such studies and tests
reveal any environmenral contamination of the premises in amounts and/or concentrations
exceeding minimum acceptable levels as then established by applicable governmental authorities,
or in excess of the baseline environmental condition of the Premises as established at the license
Commencement Date, whichever shall define the lowest limits of environmental contamination
then present in, on, or of the license Premises, BellSouth Mobility, Inc. shall pay all costs
associated with environmental remediation of such contamination exceeding the lowest limits
established using the aforementioned criteria if such contamination is found to be directly
attributable to BellSouth Mobility, Inc.. its employees, agents, contractors, or any persons or
entity acting for or on behalf of BellSouth Mobility, Inc. during the term of or any extension of
this license, or after tennination.
d. BellSouth Mobility. Inc. agrees to provide the City within seven m days of
execution by BelISouth Mobility. Inc.. copies of all registrations, n:ports. closure assessments
and certifications of financial responsibility forms as may be required to be submitted to the State
Department of Envirorunental Protection, or its successors, pursuant to Rules of the Florida
Administrative Code.
e. The City and BeIlSouth Mobility, Inc. mutually covenant and agree that during the
term of this license, or any extension thereto, to fully comply with all Federal. State aOO Local
environmental laws and administrative Rules, and that neither party will use, generate, store or
dispose of any Hazardous Material as identified and defined now Qr during the term or any
extension of this license in and by said laws and rules. Each part)' agrees to hold harmless,
defend and Indemnify the mher, along with their respective successors and/or assigns, partners,
affiliates, employees, contractors, agents, and all others acting for or on behalf of either part)' in
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any manner or action that may reasonably be detennined to be in violation of this provision.
subject to any defense or limitation available to the City pursuant to Section 768.2S. Florida
Statues.
17. Tests: BellSouth Mobility, Inc. is hereby given the right to survey, soil test, radio
coverage test, and conduct any other investigations needed to determine if the surface and
location of the License Premises is suitable for construction and installation of its
Co~unications Equipment prior to the Commencement Date as defIned in Paragraph 3. The
tenns of Paragraph 11 shall also apply.
18. Fixtures: The City covenants and agrees that no part of the improvements
constructed, erected or placed by BellSouth Mobility, Inc. on the Licensed Premises or other real
property owned by the City shall be or become, or be considered as being, afflxed to or a part of
the City's real property, any and all provisions and principals of law to the contrary
notwithstanding. All improvements of every kind and nature constructed, erected or placed by
BellSouth Mobility, Inc. on the Licensed Premises shall be and remain the property of BellSouth
Mobility, Inc..
19. Assignment and Subletting: BellSouth Mobility, Inc. may assign or sublet the
Licensed Premises or any part thereof without the consent of the City only if BellSouth Mobility,
Inc. remains liable for fulfillment of payments under this License and the nature of the use is not
changed or the assignment is made to an afflliate of BellSouth Mobility, Inc.. All other
assignments shall require the City's prior written consent, which consent shall not be
unreasonably withheld.
20. Memorandum of License Agreement: Following the. execution of this License,
either party, at its sole expense, shall be entitled to file the Memorandum of License Agreement
of record in the public records of Pinellas County, Florida.
21. Other Conditions:
(a) The City acknowledges that following the execution of this License, BellSouth
Mobility, Inc. will contact appropriate local governmental agencies for the purpose of obtaining
all building permits and approvals, zoning changes and approvals, variances, use permits and
other governmental pennits and approvals ("Local Pennits") necessary for the construction,
operation and maintenance of the Communications Equipment on the Licensed Premises. The
City agrees to fully cooperate with BellSouth Mobility, Inc. in obtaining the Local Pennits and,
without limiting the generality of the foregoing, to execute any applications, maps, certificate or
other documents that may be required in connection with the Local Permits.
,..
(b) Whenever under the License the consent or approval of either party is required or
a determination must be made by either party, no such consent or approval shall be unreasonably
withheld or delayed, and all such determinations -shall be made on a reasonable basis and in a
reasonable manner.
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(c) The City coven3nts that BellSouth Mobility. Inc. shall, upon paying the rent and
observing the other covenants and conditiorul herein upon iu part to be observed, peaceably and
quietly hold and enjoy the Licensed Premises during the term of this License or aa it nuy be
extended without hindrance or ejection by the City. any person or persons claiming under [be
City, or any other licensee or tenant of the City. -
(d) BellSouth Mobility, loc. covenants and agrees that BellSouth Mobility, Inc.
Communications Equipment am installation, operation and maintenance will:
(l)
thereto.
Not irreparably damage the WPC communications tower. nor the accessories
(2) Not interfere with the operation of the City's radio or other communications
equipment, or that of other licensees or tenants currently utilizing the towers or licensed or leased
premises for such purposes within 100 yards of the Licensed Premises. In the event there is
interference by BelISouth Mobility, Inc. I BellSouth Mobility, Ioc. will promptly take all Steps
necessary to correct and eliminate same within a reasonable period of time. If BellSouth
Mobility, Inc. is unable to eliminate such interference causeO by it within a reasonable period of
time, BellSouth Mobility. Inc. agrees to remove its antenrulS from the City I S property and this
Agreement shall terminate.
(3) Comply with all applicable rules and regulations of the Pederal ConununitatioDS
Commission and the ordinances or the City, including but not limited to the building and
electrical codes of the City.
(e) If the Licenses Premises is damaged for any reason so as to render it substantially
unusable for Be\lSouth Mobility. Inc.'suse, rent shall abate for such period not in excess of
ninety (90) days while the City. at its expense, restores the City's towers and/or buildings to its
condition prior to such damage. Provided, however, in the event the City fails to repair the
Licensed Premises within the said ninety (90) day period, BdlSouth Mobility I Inc. or the City ,."
shall have the right to terminate this License with no ~rther obligations hereunder .
(0 During the term of this License, the City will not grant a similar license to any
other party if such grant would in way interfere with BellSouth Mobility. Inc. '5 use of its
Communications Equipment. In the event of any interference arising from thl: installation or
operation of communications equipment at the towers sites by any other party subsequent to the
Commencement Date of this agreement, the City shall take all steps reasonably necessary to
correct and eliminate such interference within a reasonable period oftime. If the City is unable
to eliminate the interference within a reasonable period of time, the City shall be obligated to
remove the communicati.9n equipment of the other party from the towers sites. BellSouth
Mobility. Inc. shall not change the frequency, power or character of its equipment without first
obtaining the written consent oC the City, which shall not be unreasonably withheld.
Nutwithstanding any provisions of this paragraph to the contrary. any communications equipment
Page 10 of 11
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within or upon the Licensed Pr~mjscsptevioU5ly authorizerl to lhe use of any other party by the
City shall not require removal.
22. IUd on Gas Notification: as required by Section 404.056(8), Florida Statues.
BclISoulh Mobility. Inc. sha~ take notice of the following:
RADON GAS: Radon is a naturally 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 health
unit.
23. J::ntire Agreement and Binding Effect: This License and any attached exhibit!
signed or initialed by the parties constitute the entire agreement between the City and BeIlSouth
Mobility J Inc. No prior written or prior coiuemporaneous or subsequent oral promises or
representations shall be binding. This License shall not be amended or changed except by written
instrument signed by both parties. Paragraph captions herein are for convenience only, and
neither limit nor amplify the provisions of this License. The provisions of this License shall be
binding upon and inure to the benefit of the lu:irs. execulors, administrators, suc.ctssors and
a3signs of the parties. but this provision shall in no way alter the restriction hereon in connection
with assigrunent and subletting by BeUSouth Mobility. Inc.
B1..AN1C. WPC
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Page 11 of 11
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FIRST }J.{ENDMENT TO LICENSE AGREEMENT
THIS FIRST AMENDMENT TO LICENSE AGREEMENT is entered
into this /'!~ day of CO<..~..(UAJ , 1996, by and between
the CITY OF CLEARWATER, FLORIDA, a Florida Municipal
Corpora tion ("Licen~or") and PCS PRlMECO, L. P., a Delaware
Limited Partnership, regarding that certain License
Agreement between the parties dated April 8, 1996, governing
Licensed Premises as described in Paragraph 1 thereof.
WIT N E SSE T H:
WHEREAS,' Licensee desires to amend the herein.
described agreement to forsake and terminate all rights,
privileges, and benefits accruing to Licensee's use of
Licensor's Communications Tower at 1400 Young street
(License ~remises "B") and Licensor's North Water Tank at
1700 Kings Highway (License Premises "C") by virtue of said
agreement, together with all costs, obligations, terms and
conditions binding Licensee therefore; and,
WHEREAS, Licensor is agreeable to releasing Licensee in
all respects from all costs, obligations, terms and
condi tions associated wi th the aforesaid portions of the
Licensed Premises described in said License Agreement, in
exchange for Licensee forsaking and terminating all rights,
privileges and benefits accruing to Licensee thereby, under
certain terms and conditions as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises
made therein, and the mutual benefits being derived by each
of the parties thereto, it is agreed that said License
Agreement be amended as follows:
A. Henceforth, following the da1;:e hereof, the only"
portion of the Licensed Premises upon which said License
Agreement shall be effective is that cer.tain Communications.
Tower location at 3290 S.R. 580 and McMullen Booth Road
(License Premises "A", therein).
B. Licensee henceforth forsakes and terminates all
rights, privileges and benefits said License Agreement
bestowed to those portions of the Licensed Premises
described as License Premises "B" and "C".
C. Licensor henceforth releases Licensee from all
future costs, obligations, terms and conditions previously
Page 1 of 4
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binding Licensee regarding those certain portions of the
Licensed Premises described as License Premises "B" and "CWo
D. Contemporaneous with delivery of this First
Amendment To License Agreement to Licensor, duly executed by
Licensee, Licensee'shall deliver the following documents
which shall be subject to provisions of the License
Agreement:
1. Insurance certificate(s) as required under
paragraph 15 of the License Agreement.
2. Environmental report(s) as required under
paragraph 16 of the License Agreement.
E. Upon approval of this First Amendment. To License
Agreement-by the Clearwater City Commission, and its proper
execution, It is mutually. agreed between the parties that
the initial year annual rent for the remainder Licensed
Premises shall continue unchanged at $12,420.00, which shall
be due and payable to Licensor not later than fifteen (15)
. days following delivery of this document to Licensee.
.
F. All annual rent payments, subject to adjustment as.
provided in the License Agreement, shall be due and payable
on or before each succeeding anniversary of the Commencement
Date (Hay 1, 1996)of the License Agreement. A late payment
penalty of ten percent (10%) of the annual rent amount shall
be due and accompany any payment received by Licensor after
the tenth (10th) day following any due date as herein
provided.
G. It is mutually agreed by the parties that Paragraph
21 (e) of the License Agreement is hereby amended to read as "
follo','/s:
.
If the License Premises is damaged for any reason so as
to render it substantially unusable for PrimeCo's use, other
than damage by or through accident, error, omission, willful
misconduct or negligence of Licensee, its employees, agents,
contractors or assigns, rent shall abate for such period not
in excess of ninety (90) days while the City, at its expense
restores the City's to~.'cro tower and/or buildings to its
condi tion prior to such damage. Provided, however, in the
event the City fails to repair the Licensed Premises within
the said ninety (90) day period, PrimeCo shall have the --
right to terminate this License with no further obligations
Page 2 of 4
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hereunder. In the event such damage is in any way
attributable to primeCo, its employees, agents, contractors
or assigns,' and Prime'Co fails to repair the Licensed
Premises wi thin ninety (90) days of occurrence, the City
shall have the right to terminate this License with no
further obligations ,hereunder, or to deem Licensee to be in
default of this License Agreement and subject to the
remedies as provided in Paragraph 13 hereof.
ALL OTHER TERMS AND CONDTIONS OF SAID LICENSE AGREEMENT
REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT.
IN WITNESS WHEREOF, the parties have hereunto set their
hands and seals on the day and year first above written.
Signed, sealed and delivered
in the presence of:
$~ J~
w1 TNES S
Print Name>A,A.-(
PCS PRIMECO, L.P.
.
By: ~~~
15aniel Behuniak
Chief Operating Officer and
President, Southeast Region
,JIll f'.L ~v
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
BEFORE.ME, the undersigned, personally. appeared Daniel,.
Behuniak, Chief Operating Officer and President, Southeast
Region, PCS PRIMECO, L.P., a Delaware Limited Partnership,
who acknowledged the foregoing instrument on behalf of the
partnership.
//1 0 ('.
o ary Public - Stat
Print/type name:
[v1 Personally Known
[ ] .p.rod~ .Ldencifll;dLloIl
~c of Identification rroduced--
~ J,;O. ~
;,:::-\~ ,. '~~~ E L(ll"ilATO
c '(;:"..u:-r :1 of '-'C:~:':1 1:_
\:~"'.': I> <>':'-"!c e ' ....;J. elf!1OQ
......./~ J-:' .' S~:-'e:, Ins
.. =--' . CCS/:..27C
j :'t"--..A.>i)(~J:'I
CJ 0:-.... l O.
.
Page 3 of 4
Document too Large to Scan See File
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Public-Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
Schedule C
Revenue Sharing
Agreement
tqCD / Electronics _~
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Public- Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
SCHEDULE C
REVENUE SHARING AGREEMENT
TillS REVENUE SHARING AGREEMENT, made this _ day of ,2002,
by and between MIA-COM PRIVATE RADIO SYSTEMS, INC., a Delaware corporation
(hereinafter "MIA-COM"), and CITY OF CLEARWATER, FLORIDA, a municipal
corporation in the State of Florida (hereinafter "CITY OF CLEARW A TER").
WIT N E SSE T H:
WHEREAS, MIA-COM and CITY OF CLEARWATER are Parties ("the Parties") to
a Tower Agreement (Tower Agreement) of even date herewith, pursuant to which MIA-COM
is to have the sole marketing rights and assume maintenance of two towers from the CITY OF
CLEARWATER all as more explicitly defined in the Tower Agreement and its supporting
infrastructure currently being utilized by CITY OF CLEARWATER; and
WHEREAS, CITY OF CLEARWATER has agreed as part of the transaction to
simultaneously enter into a Service and Access Agreement ("Service Agreement") with
MIA-COM to provide management and maintenance of and for the Communications System for
a term of twenty (20) years; and
WHEREAS, MIA-COM intends to actively market and solicit additional eligible third-
party tenants (the Third-Party Tower Tenants) to the Communications System in order to
generate additional revenues; and
WHEREAS, MIA-COM has agreed that CITY OF CLEARWATER shall share in the
additional revenues generated by the marketing of the Communications System to Third-Party
Tower Tenants; and
WHEREAS, the Parties desire to set forth in writing their understanding regarding the
respective rights and obligations pertaining to the sharing of the revenues generated by Third-
Party Tower Tenants.
NOW, THEREFORE, in consideration of the mutual premises and intending to be
legally bound hereby, the Parties agree as follows:
1. Marketine: Rie:hts
MIA-COM, with CITY OF CLEARWATER's consent, such consent not to be
unreasonably withheld, shall have the right to the future marketing of the tower and site facilities
portion of the Communications System to eligible Third-Party Tenants.
Company Proprietary and
Confidential
tllCD / Electronics
Revenue Sharing
Agreement
Page 1
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Public- Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
2. Third-Party Lease Ne20tiations and Reportin2
MIA-COM shall have the sole right to negotiate all leases for all new Third-Party
Tower Tenants to the tower and site facilities portion of the Communications System, which
must be approved by the CITY OF CLEARWATER in writing in advance prior to execution,
such approval not to be unreasonably withheld and to the extent that such leases are lawful under
the Communications Act. MIA-COM shall utilize prudent business practices and shall market
the tower and site facilities portion of the Communications System consistent with the usual and
customary practices and rates. MIA-COM will supply CITY OF CLEARWATER with copies
of summaries of any and all leases entered into by Third-Party Tower Tenants within thirty (30)
days of the execution date of the lease by such Third-Party Tower Tenants and shall subsequently
provide quarterly revenue statements to CITY OF CLEARWATER, reflecting all revenues
generated by Third-Party Tower Tenants for the tower and site facilities portion of the
Communications System.
3. Eli2ible Third Party Tower Tenants Revenue Sharin2
The Gross Revenues generated from Third-Party Tower Tenants of the
Communications System shall be divided as follows:
(a) MlA~COM will receive seventy five percent (75%) of the Gross
Revenues from eligible Third Party Tower Tenants and CITY OF
CLEARWATER shall receive twenty-five percent (25%).
Pursuant to Section 9.2 of the Access Agreement, at the end of the initial 20- year
term, CITY OF CLEARWATER has the option to:
Renew the Term of the Access Agreement, or not renew the Term of the Access
Agreement.
The revenue sharing arrangement and percentages will end at the initial Term and
may extend beyond the initial Term if approved by the CITY OF CLEARWATER.
The term "Gross Revenues", for purposes of this Section 3, is defined as all new
tower rental revenues derived from Third-Party Tower Tenants.
4. Accountin2 and Access to Records
CITY OF CLEARW A TER and its duly authorized representatives shall have the
right to audit the records of MIA-COM pertaining to Third-Party Tower Tenants for the tower
and site facilities portion of the Communications System to determine the accuracy of the
amounts paid under this Agreement. MIA-COM agrees to keep accurate books of account and
record at its principal place of business covering the transactions relating to this Agreement and
the revenues generated from Third-Party Tower Tenants for the tower and site facilities portion
of the Communications System and to keep all financial records in accordance with Generally
Company Proprietary and
Confidential
tllCD Electronics ~
Revenue Sharing
Agreement
Page 2
Public-Private Partnership
CITY OF CLEARWATER, FLORIDA
. Accepted Accounting Principles. CITY OF CLEARWATER and its duly authorized
representatives at CITY OF CLEARWATER's sole expense, shall have the right at all
reasonable hours of a working day and upon reasonable notice, to perform an examination of
such books of account and record and of all other documents and material which are relevant to
this matter. CITY OF CLEARWATER shall have access thereto for said purposes and for the
purpose of making copies therefrom at CITY OF CLEARWATER'S expense. All books of
accounts and records shall be kept available for at least one (1) year after the termination of this
Agreement.
April 2002
5. Payment Terms
MIA-COM shall either payor provide a credit pursuant to Section 8.4 of the
Service Agreement to CITY OF CLEARWATER its proportionate share of the Revenues as
defined herein on a quarterly basis, within thirty (30) days of the end of each calendar quarter and
shall provide with each payment, a summary setting forth the name of each Third-Party Tower
Tenant, the Revenues received during the calendar quarter and the portion of the Revenues paid
to CITY OF CLEARWATER for the calendar quarter.
6. MIA-COM agrees to conduct its services in a safe and lawful manner and to
comply with appropriate federal, state, and local laws, ordinances, orders, rules, and regulations
that may be applicable to the services being provided to the Third-Party Tower Tenants.
.
7. Nothing contained in this Agreement shall require MIA-COM to generate any
revenues whatsoever and MIA-COM shall only be obligated to utilize only such efforts as it
believes prudent to successfully market and solicit eligible Third-Party Tower Tenants for the
tower and site facilities portion of the Communications System.
8. CITY OF CLEARWATER acknowledges and agrees that it shall be entitled to
share in only those Gross Revenues generated as a result of Third-Party Tower Tenants for the
tower and site facilities used within the Communications System and shall not be entitled to any
other revenues (Service Access or otherwise) directly or indirectly generated by assets which are
not within the Communications System or as may be generated by any different radio
telecommunications assets or systems owned by MIA-COM, unless otherwise indicated in the
Service Agreement and Schedules A through E incorporated therein.
9. Either party may assign its rights and obligations under this Agreement with the
written consent to the other, which consent shall not be unreasonably withheld, provided such
assignment shall be binding upon its successors, heirs, assigns, and legal representatives.
10. The terms, covenants, and provisions of this Revenue Sharing Agreement shall
extend to and be binding upon the respective executors, administrators, heirs, and permitted
assigns of the parties.
.
Company Proprietary and
Confidential
Revenue Sharing
Agreement
Page 3
Public-Private Partnership
CITY OF CLEARWATER, FLORIDA
. 11. Any notice given by MIA-COM to CITY OF CLEARWATER or by CITY OF
CLEARW A TER to MIA-COM shall be in accordance with Article 1.4 of the Service Agreement.
April 2002
12. This Agreement and the performance thereof shall be governed by Article 11.8
of the Service Agreement.
13. This document constitutes the entire agreement of the Parties as provided in
Article 11.7 of the Service Agreement.
.
.
Company Proprietary and
Confidential
tllCD Electronics ~~
Revenue Sharing
Agreement
Page 4
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Public- Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
IN WITNESS WHEREOF, the Parties hereto have executed and acknowledged this
Agreement, the day and year fIrst above written.
ATTEST: MIA-COM PRIVATE
RADIO SYSTEMS, INC.
By:
Title:
Countersigned:
By:
Brian J. Aungst
Mayor-Commissioner
Approved as to form:
Attest:
Assistant City Attorney
Company Proprietary and
Confidential
tllCD / Electronics
CITY OF CLEARWATER, FLORIDA
William B. Horne II
City Manager
Cynthia E. Goudeau
City Clerk
Revenue Sharing
Agreement
Page 5
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Public- Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
Schedule D
Tower Lease
tllCD / Electronics ~
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Public-Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
SCHEDULE D
TOWER AGREEMENT
THIS TOWER AGREEMENT is made and entered into as of this I st day of July,
2002, by and between the CITY OF CLEARWATER, FLORIDA, a Florida Municipal
Corporation (herein "City" or "The City"), and M/A-COM Private Radio Systems, Inc" a
Delaware corporation (herein "M/ A-COM"), having its general offices at 3315 Old Forest
Road, Lynchburg, Virginia 24501. All terms defined herein shall be for the sole purpose of
the Tower Agreement.
1. Premises: The City hereby grants to MIA-COM and MIA-COM hereby
accepts from the City an exclusive License to use not more than 7219 square feet ofland area
situated within the chain link fenced boundaries enclosing each of the City's two (2) existing
radio communications towers.
(a) Communication Tower - operational upon the grounds of the City's
Northeast Water Pollution Control Plant, 3290 S.R. 580 and McMullen Booth Road (herein,
"WPC site") located at Latitude 28001 '54" North and Longitude 82042' 16" West, and at
(b) Communication Tower - operational at 1400 Young Street upon the
grounds of park property under lease by the City from the Florida Department of
Transportation by virtue of that certain 99 year lease dated January 19, 1976 and that certain
Modification of Lease dated January 26, 1986, all being recorded in O.R. Book 6275, Pages
1880 through 1888, in the Public Records of Pinellas County, Florida, located at Latitude
27056' 42" North, and Longitude 82047' 13" West (herein, "Missouri site").
The communications towers, together with the land upon which they are located, are referred
to herein as the" Premises." Final site specific engineering plans and load factor calculations
regarding the respective site is subject to final approval by authorized City officials prior to
commencement of any construction or installation of any communications equipment by
MIA-COM, its employees, agents or contractors.
2. Communications Equipment: The City hereby grants permISSIOn to
MIA-COM to install and operate such communications equipment, building, electrical
generator using propane fuel and associated equipment on and within the Premises as
MIA-COM deems appropriate.
In this agreement, all of the equipment, buildings, panels, generators, cables, wires, antennas,
and accessories are referred to collectively as "Communications Equipment" or
"Communications Centers."
Company Proprietary ami
Confidential
"tileD Electronics ~ot1
Tower Agreement
Page 1
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Public-Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
3. Term: The primary term ("Primary Term") of this Agreement shall be for
twenty (20) years commencing on July 1, 2002 (the "Commencement Date") and terminating
at Midnight, September 30, 2022, subject to extensions as set forth in Paragraph 8 below.
The Commencement Date as set forth herein shall coincide and be identical with the first day
of the first month in which MIA-COM intends to enter upon the Premises, but in no event
later than 90 days following the date of this Agreement as first above written.
MIA-COM shall provide written notice of the intended Commencement Date to the office of
the City Attorney, 112 South Osceola Avenue, Clearwater, Florida 34616 not later than ten
(10) business days prior to said Commencement Date.
4. Consideration. Contemporaneous with the execution of this License
Agreement, the City and MIA-COM are entering into a Service and Access Agreement (the
"Service Agreement"). M/A-COM's fulfillment of its obligations pursuant to the Service
Agreement and this License Agreement is in total consideration of this License Agreement.
There shall be no additional consideration due from MIA-COM to the City.
5. Use: MIA-COM will use the Premises for the purpose of constructing and
operating Communications Centers as provided herein. MIA-COM will abide by all local,
state and federal laws and obtain all permits and licenses necessary to operate the systems.
MIA-COM shall use the Premises for no other purposes without the prior written consent of
the City.
6. Access: MIA-COM shall have ingress and egress to the Premises on a 24-
hour basis for the purposes of maintenance, installation, repair and removal of said
Communications Equipment. Provided, however, the only authorized engineers or
employees ofM/A-COM, or persons under MIA-COM's direct supervision, will be permitted
to enter the said Premises, and their entry shall be for the purpose of installing, removing, or
repairing the Communications Equipment and for no other purpose. MIA-COM shall notify
City in advance of its need to install, remove, or repair the Communications Equipment
located on the Premises, except in the case of an emergency in which event notification shall
be given as soon as reasonably possible. Access requiring entrance into or onto the
communications towers shall be coordinated with the General Services Department of the
City with respect to the communications towers.
7. Utilities at M/A-COM's Cost: MIA-COM shall be solely responsible for and
promptly pay all charges for electricity, telephone and any other utility used or consumed by
MIA-COM on the Leased Premises. The City shall advise MIA-COM and fully cooperate
with any utility company or the City requesting an easement over and across the Premises or
other lands owned by the City in order that such utility company may provide service to
MIA-COM. If additional easement is required to provide such utility services to the Missouri
site, the City will cooperate with MIA-COM in seeking the grant of such easement from the
State of Florida Department of Transportation. M/ A-COM shall have an electrical current
meter installed at the Premises and have the right to run underground or overhead utility
lines, in compliance with the City's Land Development Code, directly from the utility source
to the Communications Equipment. The cost of such meter and of installation, maintenance
Company Proprietary and "tileD Electronics ~CIYI Tower Agreement
Confidential I Page 2
Public- Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
.
and repair thereof shall be paid by MIA-COM. MIA-COM and the utility company
providing services to MIA-COM shall have access to all areas of the Premises, or other lands
of the City, necessary for installation, maintenance and repair of such services; provided, that
access requiring entrance into or onto the communications towers shall be coordinated with
the General Services Department of the City.
8. Extensions: MIA-COM and the City must mutually agree to terms to extend
this License by one (1) additional term of five (5) years.
9. Holding Over: If MIA-COM requires use of the Premises after expiration of
the primary term or any extension of this License, without the exercise of an option or the
execution by the City and MIA-COM of a new License, then
MIA-COM shall be deemed to be occupying the Premises as a tenant-at-sufferance on a
month-to-month basis, subject to all the covenants and obligations of this License at monthly
rent rate of $3,125. The payment of such monthly rental amount shall be due and payable by
the first day of the month succeeding the expiration of the final month of the License term
previously granted by the City.
10. Notices:
(a)
Any notice shall be in writing and shall be delivered by hand or sent by
United States registered or certified mail, postage prepaid, addressed as
follows:
.
CITY
City Manager
City of Clearwater
P. O. Box 4748
Clearwater, FL 34618-4748
MIA-COM
MIA-COM Private Radio
Systems, Inc.
P. O. Box 2000
Lynchburg, VA 24501
Attn: General Manager
Copy to City Clerk:
Copy to: General Counsel
(b) Either party may change its address and telephone number(s) to which notice
shall be given by delivering notice of such change as provided above. Notice
shall be deemed given when delivered if delivered by hand, or when
postmarked if sent properly by mail.
.
11. Liability and Indemnity: MIA-COM agrees to indemnify and hold the City
harmless from all claims (including costs and expenses of defending against such claims)
arising or alleged to arise from the negligence or willful misconduct of
MIA-COM or M/A-COM's agents, employees or contractors occurring during the term of
this License or any extensions in or about the Premises. MIA-COM agrees to use and occupy
the Premises at its own risk and hereby releases the City, its agents and employees, from all
claims for any damage or injury brought on by MIA-COM to the full extent permitted by
Company Proprietary and "tqco Electronics ~~ Tower Agreement
Confidential I Page 3
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Public- Private Partnership
CITY OF CLEARWATER, FLORIDA.
April 2002
law. The City agrees to indemnify and save MIA-COM harmless from all claims (including
cost and expenses of defending against such claims) arising or alleged to arise from the
negligence or willful misconduct of the City or The City's agents and/or employees
occurring during the term of this License, subject to any defense or limitation pursuant to
Section 768.28, Florida Statutes.
12. Termination:
(a)
as follows:
Either party shall have the right to terminate this License at any time
(1) By either party, if the approval of any court or other
governmental authority necessary for the construction or operation of the
Communications Equipment or other infrastructure changes cannot be obtained, or is
not obtained after due diligence, or is revoked.
(2) By either party, in the event of a material breach of any of the
provisions of this Agreement, subject to Paragraph 13 below.
(3) If either party determines that the cost of obtaining or retaining
the approval of any court or other governmental authority necessary to such party for
the construction or operation of the Communication Equipment is prohibitive, or if
either party determines that the property is not appropriate for its Communications
Equipment for technological, planning or environmental reasons, including, but not
limited to, signal interference.
(4) If either party in the event that any government or public body
shall take all or such part of the Premises thereby making it physically or financially
infeasible for the Premises to be used in the manner it was intended to be used by this
Agreement.
(b) The party terminating this Agreement shall give written notice of
termination to the other party not less than thirty (30) days in advance of the effective
date of termination. In the event termination is by the City, the City shall also give
such 30 days advance written notice to the State Technology Office, Attention:
Contract Manager, State Technology Office, 4030 Esplanade Way, Tallahassee, FL
32339-2301. Upon termination, neither party will owe any further obligation under
the terms of this License or the Service Agreement, except that MIA-COM shall be
responsible for restoring the areas occupied by MIA-COM to its original conditions as
near as practicable, save and except normal wear and tear and acts beyond
MlA-COM's control and for making any payments accruing to the date of termination
to the City.
(c) Upon termination of this License, the term hereby granted and all
rights and interest of MIA-COM in the Premises shall end. Such termination shall be
Company Proprietary and tllCD Elecrronics M~~ Tower Agreement
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CITY OF CLEARWATER, FLORIDA
April 2002
without prejudice to the City's right to collect from MIA-COM any rental or
additional rental which has accrued prior to such termination together with all
damages, including, but not limited to, the damages specified in subparagraph (b) of
this paragraph which are suffered by the City because of MlA-COM's breach of any
covenant under this License.
13. Defaults and Remedies:
(a) Notwithstanding anything in this License to the contrary,
MIA-COM shall not be in default under this License until thirty (30) days after
receipt of written notice thereof from the City; provided, however, where any such
default cannot reasonably be cured within thirty (30) days, MIA-COM shall not be
deemed to be in default under the License if MIA-COM commences to cure such
default within said thirty (30) day period and thereafter diligently pursues such cure
to completion.
(b) In the event of MlA-COM's failure to comply with any material
provision of this License, the City may, at its option, terminate this License without
affecting its right to sue for damages to which the City may be entitled. Should the
City be entitled to collect damages and be forced to do so through its attorney, or by
other legal procedures, the City shall, upon receipt of a favorable ruling, be entitled to
its reasonable costs and attorneys' fees thereby incurred upon said collection.
(c) Notwithstanding anything in this agreement to the contrary, and
specifically including the language in 13 (a) hereof, this agreement shall be null and
void if MlACOM or any approved assignee of MIA-COM FILES A VOLUNTARY
PETITION IN BANKRUPTCY OR HAS AN INVOLUNTARY PETITION filed
against it or makes an assignment for the benefit of creditors.
14. Taxes: The CITY shall pay when due any and all taxes or fees that may be
levied and assessed upon the Premises attributable to any improvement thereto made by
MIA-COM, the Communications Equipment installed thereon, or upon this Agreement. If
any such tax is paid by MIA-COM, the CITY shall reimburse MIA-COM for the amount of
any such tax payments within sixty (60) days of receipt of sufficient documentation
indicating the amount Paid. Upon written request by the CITY, MIA-COM shall furnish
evidence of payment of all such taxes.
15. Early Termination: Should this License be terminated prior to expiration of
the Primary Term for any reason other than default of MIA-COM pursuant to Paragraph 13
hereof, the City shall continue to provide to MIA-COM free and unfettered access to the
Premises so that MIA-COM may continue to serve existing Third Party Tower Tenants or
add new or additional Third Party Tower Tenants as well as maintaining its equipment
mounted on or about the Premises during the Primary Term
Company Proprietary and
ConfuIential
Tower Agreement
Page 5
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CITY OF CLEARWATER, FLORIDA
April 2002
16. Tests: MIA-COM is hereby given the right to survey, soil test, radio
coverage test, and conduct any other investigations needed to determine if the surface and
location of the Premises is suitable for construction and installation of the Communications
Equipment prior to the Commencement Date as defined in Paragraph 3. The terms of
Paragraph 11 shall also apply.
17. Fixtures: The City covenants and agrees that no part of the improvements
constructed, erected or placed by MIA-COM on the Premises or other real property owned by
the City shall be or become, or be considered as being, affixed to or a part of the City's real
property, any and all provisions and principles of law to the contrary notwithstanding. All
improvements of every kind and nature constructed, erected or placed by MIA-COM on the
Premises shall be and remain the property of the CITY
18. Assie:nment and Sublicensine: MIA-COM may assign or sublicense the
Premises or any part thereof without the consent of the City but consistent with the
Ordinances of the City only if MIA-COM remains liable for fulfillment of all it's obligations
under this License and the nature of the use is not changed and the assignment is made to an
affiliate of MIA-COM. Notice shall be given to the City by MACOM of the assignment and
sublicensing within fifteen days. All other assignments shall require the City's prior written
consent, which consent shall not be unreasonably withheld. MIA-COM shall not use the
Premises as security for any loans.
19. Memorandum of License Aereement: Following the execution of this
License, either party, at its sole expense, shall be entitled to file the Memorandum of License
Agreement (attached as Exhibit "D") of record in the public records of Pinellas County,
Florida.
20. Other Conditions:
(a) The City acknowledges that following the execution of this
License, MIA-COM will contact appropriate local governmental agencies for the
purpose of obtaining all building permits and approvals, zoning changes and
approvals, variances, use permits and other governmental permits and approvals
("Local Permits") necessary for the construction, operation and maintenance of the
Communications Equipment on the Premises. The City agrees to fully cooperate with
MIA-COM in obtaining the local permits and, without limiting the generality of the
foregoing, to execute any applications, maps, certificate or other documents that may
be required in connection with the local permits.
(b) Whenever under the License the consent or approval of either party is
required or a determination must be made by either party, no such consent or
approval shall be unreasonably withheld or delayed, and all such determinations shall
be made on a reasonable basis and in a reasonable manner.
Company Proprietary and
Confidential
tllCD Electronics ~
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Public-Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
(c) The City covenants that MIA-COM shall, upon observing the covenants
and conditions herein upon its part to be observed, peaceably and quietly hold and
enjoy the Premises during the term of this License or as it may be extended without
hindrance or ejection by the City, any person or persons claiming under the City, or
any other Licensee or tenant of the City.
(d) MIA-COM covenants and agrees that MlA-COM's Communications
Equipment and installation, operation and maintenance will:
(1) Not negligently, damage the Communication Towers.
(2) Not interfere with the operation of the City's radio or other
communications equipment, or that of other Licensees or tenants currently
utilizing the towers or Premises for such purposes within 100 yards of the
Premises. In the event there is interference by MIA-COM, MIA-COM will
promptly take all steps necessary to correct and eliminate same with a
reasonable period of time. If MIA-COM is unable to eliminate such
interference caused by it within a reasonable period of time, MIA-COM
agrees, subject to the provisions of Sections 12 and 13 hereof, to remove its
antennas from the City's property and this Agreement shall terminate.
(3) Comply with all applicable rules and regulations of the Federal
Communications Commission and the ordinances of the City, including but
not limited to the building and electrical codes of the City.
(e) If the Premises are damaged by reason of the fault or negligence of the
City so as to render it substantially unusable for MlA-COM's use, the City, at its
expense, shall restore the City's towers and/or buildings to their condition prior to
such damage. Provided, however, in the event the City fails to repair the Premises
within the said ninety- (90) day period, MIA-COM shall have the right to terminate
this License and the Service Agreement with no further obligations hereunder. If the
Premises are damaged due to any other reason, it shall be
MlA-COM's responsibility, at its expense and option, to restore such Premises.
(f) During the term of this License, the City will not grant a similar license to
any other party.
21. Radon Gas Notification: As required by Section 404.056(8), Florida
Statutes, MIA-COM shall take notice of the following:
RADON GAS: Radon is a naturally 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
Company Proprietary and
ConfuJential
Tower Agreement
Page 7
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CITY OF CLEARWATER, FLORIDA
April 2002
regarding radon and radon testing may be obtained from your county public health
unit.
22. Entire Aereement and Bindine Effect: This Schedule and any attached
schedules signed or initialed by the parties together with the Service Agreement constitute
the entire agreement between the City and MIA-COM concerning the subject matter hereof
and this agreement supersedes and replaces any prior or contemporaneous license,
agreement, promise, license, negotiations or writing concerning such subject matter. This
License shall not be amended or changed except by written instrument signed by both
parties. Paragraph captions herein are for convenience only, and neither limit nor amplify the
provisions of this License. The provisions of this License shall be binding upon and inure to
the benefit of the heirs, executors, administrators, successors and assigns of the parties, but
this provision shall in no way alter the restriction hereon in connection with assignment and
sublicensing by MIA-COM.
Company Proprietary and
Confulential
Tower Agreement
Page 8
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Public-Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date and year first above written.
-i.~ W~~
WITNESS
Print Name E. Sue Tomlin
M/A-COM PRN ATE RADIO SYSTEMS,
INe.
By 6l/J{
Name: Roger Boucher
Title: VP and General Counsel
STATE OF \)l( 0.. ~CA- :
C, ,el (5 OF'L,C"'( .~ h.. :f' " .__ ) _ _) _
BeFORE ME, the undersigned, personally appeared J)-- ~.(, 'f:J[C ( 0/1 (.-I
. the <..----~ l.-l v~ ?) 2Ct'fl ofM/A-COM Private Radio Systerri~, Inc., a Delaware
corponfrion, who a~knowledged the foregoing instrument on behalf ofthe corporation.
~"
.... j
-Nob.4~blfc\.L _ ~li ~f2~)
Print/type name~--~ V (, JSS# )tV
My commission expires: /
.
Personally known
Provided Identification V
Type of Identification Provided
OR
Kerri L. Sissney
NOTARY PUBLIC
'illlmonwealth of Virginia
C;ommission Expires 4/30/04
) ,
.:.....-.L.
Company Proprietary and
Confidential
Tower Agreement
Page 9
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Public-Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date and year first above written.
MIA-COM PRIVATE RADIO SYSTEMS,
INC.
~'W~
WITNESS
Print Name E. Sue Tomlin
ByreVV~
Name: Roger Boucher
Title: VP and General Counsel
,) .
STATE OF V i I~~~'--K'<- :
C .-Ib OF 1-- '6)'\C1 ~ b."r ~. _________
BEFORE ME, the undersigned, personally appeared i~\ei,r -r::'--:t:x)..c~ ,\(:v
the VCLo,-<- ~. 2tLrz of MIA-COM Private Radio System~~Inc., a Delaware
corporation, who acknowledged the foregoing instru:~ent on behalf of the corporation.
/ /
~/~-,_: ~b
Print/type name:- 'r I '.~
My commission expires:
Personally known
Provided Identification ~
Type of Identification Provided D L .
Kerri L. Sissney
NOTARY PUBLIC
Commo~wealth of Virginia
My Commission Expires 4/30104
OR
Company Proprietary and
Confidential
Tower Agreement
Page 9
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CITY OF CLEARWATER, FLORIDA
Countersigned:
k(4- ~
Name: Brian J. Aungst
Title: Mayor-Commissioner
Approved as to form:
~~
Name: ~~ C?U"t:l.S-9~
Title: hs f- C7y ,fI/b'/J~
CITY OF CLEARWATER,
FLORIDA
Hy
Title:
City Manager
Attest:
April 2002
II
r~,.;Z R...fJ."..
Name: Cynthla.. E. Goudeau
~
Title: City Clerk
Company Proprietary and
Confidential
Tower Agreement
Page 10
Public- Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
.
STATE OF FLORIDA:
COUNTY OF PINELLAS:
ORE ME, the undersigned personally appeared ~~);2 //1 /I../I~ the
of the CITY OF CL~,
Florida, who ex uted the foregoing instrument and acknowledges the execution thereof to
be his/her free act and deed for the use and purposes herein set forth, and who is personally
known to me.
WITNESS my hand and seal this c) ~ ') day of ~ 14-R ,
,200~.
.......... Denise A. Wilson
$~I~ fjl,*~ MY COMMISSION # CC914107 EXPIRES
~*~,:"'! June 18, 2004 \NC.
'ftj,;"J 9.-flJ GOMete Tl1RU TROHAltIlIIIUIlAMQ.
'Il.Rr,OW-
f;efJ ~K~) () ~ l100v
Notary Public /~' IJ / 1 I' - _\
Print/type name: :A)/.5(5 I WI ::::ctJ
ST ATE OF FLORIDA:
COUNTY OF PINELLAS:
. ppeared ~ /l.;, J Jlm~e
of the CITY OF CLEA~~TER,
Florida, who exec ed the fo going instru nt and acknowledges the execution thereof to
be his/her free act and deed for the use and purposes herein set forth, and who is personally
known to me.
WITNESS my hand and seal this
dLf
day of f}.fA-e...,
,20~
,\\'9,~";~'" Denise A Wilson
o~1J-'b.~~ MY COMMISSION # CC914107 EXPIRES
~~;.,~':<i'g June 18, 2004
',~>i." ...;1'.,." DONele 111RU TROYFAlHIII&UIlANl;i.IN<::.
'fIRrll"''i''
f}~J a iJ~)
Notary Public JJ. . i1 I 1'1 _ A '\
Print/type name: {.7.i)LSCJ. W, L':X.JCJ
.
Company Proprietary and
Confidential
tileD Elecrronics ~
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CITY OF CLEARWATER, FLORIDA
April 2002
Schedule E
User Gear Transfer
tllCD / Electronics _~
Public-Private Partnership
CITY OF CLEARWATER, FLORIDA
April 2002
.
SCHEDULE E
USER GEAR TRANSFER
MIA-COM shall transfer to the CITY OF CLEARWATER the following types and
quantities of User Gear in accordance with Section 7.2 of the Service and Access Agreement.
Up to quantity 300 Jaguar Portable radios
Up to quantity 175 Orion Mobile Radios
Up to quantity 20 Orion Desktop Control Stations
*Programming and installation services are included in the above.
In addition, MIA-COM shall provide a radio trade-in credit of $480 per radio for each radio the
CITY OF CLEARWATER turns in towards the actual purchase of a new radio beyond the above
transfers up to a maximum of 450 radios. The credit shall be applied at the time of actual user
gear trade-in and is valid for five (5) years from the signing of the Service and Access
Agreement. .
. A letter of understanding will be developed between MIA-COM and the CITY OF
CLEARW A TER to address the Cities requirements of certain models and options of the radios
being transferred. The cost of the radios and options in this letter of understanding will not
exceed the cost of the above radios.
.
Company Proprietary and
Confidential
tllCD / Electronics
0t1
Revenue Sharing Agreement
Page 1
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CITY OF CLEARWATER, FLORIDA
April 2002
Service & Access
Agreement
tileD / Electronics ~
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Public- Private Partnership
CITY OF CLEARWATER, FLORIDA
April, 2002
SERVICE AND ACCESS AGREEMENT
BY AND BETWEEN
MIA-COM PRIVATE RADIO SYSTEMS, INC.
AND
CITY OF CLEARWATER, FLORIDA
Dated as of 1st of Julv. 2002
Company Proprietary and
Confidential
Service and Access Agreement
Page 1
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CITY OF CLEARWATER, FLORIDA
April, 2002
SERVICE AND ACCESS AGREEMENT
This SERVICE AND ACCESS AGREEMENT ("Service Agreement") effective as of
the 1st day of July, 2002, by and between MiA-COM PRIVATE RADIO SYSTEMS,
INC., a Delaware corporation ("MiA-COM") duly authorized to do business in the State
of Florida, and CITY OF CLEARWATER, FLORIDA, a Florida municipal
corporation (CITY OF CLEARWATER).
NOW THEREFORE, in consideration of the premIses and mutual covenants
hereinafter set forth and intending to be legally bound, the Parties hereto agree as
follows:
Company Proprietary and
Confidential
Service and Access Agreement
Page 2
tileD Electronics ~~
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Public- Private Partnership
CITY OF CLEARWATER, FLORIDA
April, 2002
I.
INTERPRETA TION
1.1 DEFINITIONS
In this Service Agreement, the following terms shall have the following respective meanings:
"Affiliate" means any other entity or person that, directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with, the specified entity
or person.
"CITY OF CLEARWATER", "CITY" or "City" means the City of Clearwater, Florida,
U.S.A., a municipal corporation in the State of Florida, U.S.A.
"Communications System" means the communications facilities, equipment and other
improvements described in Schedule A hereto, under System Description.
"MIA-COM" means MIA-COM Private Radio Systems, Inc., and any successors or assigns
thereto as permitted hereunder.
"Connectivity" means City of Clearwater leased or City owned telephone lines or fiber network
used to connect equipment to the Communications System.
"Contract Documents" means this Service Agreement and all Schedules incorporated herein.
"Effective Date" means the effective date of this Service Agreement, which is the date set forth
in the opening paragraph hereof.
"Existing Contracts" means City of Clearwater contracts and agreements for hardware
maintenance, support services and construction as identified in Schedule B hereto.
"Existing System" means all of the assets comprising the existing CITY OF CLEARWATER
owned EDACS system but not including any FCC Licenses.
"HV AC" means Heating Ventilation and Air Conditioning.
"Upgrade" means all of the assets comprising the hardware and services associated with an
upgrade to the Existing EDACS System.
"FCC" means the Federal Communications Commission, or any other similar or successor
agency of the federal government administering the Communications Act.
Company Proprietary and
Confidential
Service and Access
Agreement
Page 3
tllCD Electronics ~
Public-Private Partnership
CITY OF CLEARWATER, FLORIDA
April, 2002
.
"FCC Licenses" means the Licenses currently held by CITY OF CLEARWATER or issued in
the future to CITY OF CLEARWATER for use of spectrum at 800 MHz to provide radio
communications.
"Governmental Authority" means any nation or government, any state of other political
subdivision thereof, any municipal, local, city or county government, and any entity exercising
executive, legislative, judicial, regulatory or administration functions of or pertaining to
government.
"Initial Term" means the initial contract term as defined in Section 2.1.
"Parties" means the parties to this Service Agreement and "Party" means either one of them.
"Quarterly Payments" means the fees that CITY OF CLEARWATER agrees to pay four times
a year as set forth in Section 7.2 hereto.
"Secured Debt" means any obligations issued by MIA-COM, or its Affiliates, which are secured
in whole or in part by payments made by CITY OF CLEARWATER pursuant to this Service
Agreement.
"Service Agreement" means this Service and Access Agreement and all Schedules hereto, as the
. same may be amended and supplemented from time to time as provided herein.
"Term" means the Initial Term and the Term Extension(s) as permitted in Section 2, if any.
"Third Party Tower Tenants" means eligible tower users to which MIA-COM, CITY OF
CLEARWATER, or third-party Tower Owner provides equipment space on one or more of the
associated towers usually for a fee or other consideration.
"UPS" means Uninterruptible Power Supply.
1.2 OTHER DEFINITIONS
Other terms used in this Service Agreement shall have the respective meanings given such terms
herein.
1.3 SCHEDULES
The following is a list of the schedules attached to and incorporated into this Service Agreement
and deemed to be a part of this Service Agreement (the "Schedules"):
.
Statement of Work: Schedule A contains MlA-COM's statement of work that includes the
following parts: Overview - an outline of project responsibilities; System Description - a
description of the current CITY OF CLEARWATER system. CITY OF CLEARWATER tower
sites information is also discussed in this document;
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Transition Plan - the transition plan that is suggested by MIA-COM;
Future Maintenance Plan - the maintenance plan that will be followed by MIA-COM; and
Determination of Service Levels - the service levels which MIA-COM agrees to perform.
Existing Contracts: Schedule B describes all contracts and agreements relating to the Existing
System.
Revenue Sharing Agreement: Schedule C outlines the terms and conditions associated with the
sharing of revenue from existing or future Third Party Tower Tenants and/or Third Party
Subscribers described in Section 8.3 herein.
Tower Agreement: Schedule D provides the tower use agreement
User Gear: Schedule E lists the User Gear to be provided by MIA-COM to the CITY OF
CLEARW A TER at no additional charge.
1.4 PARTIES' ADDRESSES
All notices under this Service Agreement shall be in writing and shall be deemed to have been
duly given upon being delivered personally or upon receipt if mailed by certified mail, return
receipt requested. Notices shall be sent to the representative's named below or any subsequent
representative for whom notice was provided pursuant to this section.
If to MIA-COM, to:
MIA-COM Private Radio Systems, Inc.
3315 Old Forest Road
Lynchburg, Virginia 24501
Fax: 434-385-2182
If to City of Clearwater, to:
City Manager
City of Clearwater
112 S. Osceola Ave
Clearwater, Fl. 33756
Fax: 727-562-4052
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1.5 ORDER OF PRECEDENCE
In the event of a conflict between the terms and conditions of any of the Contract Documents, the
controlling terms and conditions shall be, in descending order or precedence, those of:
. The Service Agreement.
. The Statement of Work.
. The Tower Agreement.
. The Revenue Sharing Agreement.
. Existing Contracts.
1.6 TIME
In this Service Agreement, unless otherwise specifically stated in the context of the computation
of a period of time from a specified date to a later specified date, the word "from" means "from
and including" and the words "to" and "until" each mean "to but excluding."
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II.
TERM
2.1 INITIAL TERM
The Term shall begin on the Effective Date and shall terminate at the end of the CITY OF
CLEAR WATER'S fiscal year, 20 years after the Effective Date, unless extended in accordance
with Section 2.2.
2.2 TERM EXTENSION
The Term of this Service Agreement may be extended by one (1) additional term of five (5) years
beyond the Initial Term on such terms and conditions to which the Parties mutually agree. CITY
OF CLEARWATER shall notify MIA-COM whether it intends to extend this Service Agreement
at least one year prior to the end of the Term.
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III.
MIA-COM RESPONSIBILITIES
3.1 PROVISION OF SERVICES
In consideration for the fees and charges as set forth in Section 7.0 hereto, subject to the
limitations, qualifications and exclusions set forth in this Service Agreement (including the
Schedules), MIA-COM shall use its best efforts to provide the following products and services
which shall be referred to jointly as the Services:
. access to the Communications System
. the products and services provided herein, including all schedules
3.2 SERVICE LEVELS
MIA-COM shall ensure that its performance of the Services will meet or exceed the applicable
Service Levels to be determined in accordance with the procedures set forth in Schedule A hereto.
3.3 EXISTING CITY OF CLEARWATER CONTRACTS
To the extent permitted, CITY OF CLEARWATER shall assign to MIA-COM the Existing
Contracts in Schedule A.
A. MIA-COM may with the exception of the two existing tower leases, at its expense,
cancel, substitute, amend, or request CITY OF CLEARWATER to cancel,
substitute or amend, any Existing Contracts as long as such change does not result
in degradation of Services Levels to CITY OF CLEARWATER, which change
must be approved by the CITY OF CLEARWATER prior to execution of a
change, and which approval shall not be unreasonably withheld.
B. CITY OF CLEARWATER will indemnify MIA-COM for any loss MIA-COM
may incur relating to the Existing Contracts attributable solely to periods prior to
the Effective Date.and thereafter if not incurred as a result of any default of
MIA-COM.
C. CITY OF CLEARWATER will continue to pay existing contract obligations as
customary when they become due.
3.4 OPERATION
A. The Communications System shall at all times be operated in accordance with all
appropriate rules and regulations, and in such a manner as not to cause
interference, of any kind, with present transmissions of radio or television
broadcasts in the area of the sites, or the transmission or reception of radio,
television, microwave and other communication signals as conducted on the
Effective Date of this Service Agreement by existing tower users of CITY OF
CLEARWATER. MIA-COM shall not violate or subject the CITY OF
CLEARWATER to any violation of any federal, state or local law currently in
effect or promulgated including, but not limited to, laws, rules or regulations
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pertaining to electromagnetic radiation communications or telecommunications.
If the operations conducted by MIA-COM under this Service Agreement shall at
any time cause any such interference or violation of law, MIA-COM shall
immediately, at MlA-COM's own expense, take all steps necessary to remedy such
situation and/or eliminate such interference and will hold the CITY OF
CLEARWATER harmless from any such abridgement.
B.
CITY OF CLEARW A TER will attempt to mitigate and use its best efforts to
manage the resolution of any matter relating to interference with CITY OF
CLEARWATER transmission or reception of signals, or damages or related costs
arising therefrom caused by others. MIA-COM shall provide CITY OF
CLEARWATER all necessary technical assistance in identifying the source of
such interference and recommendations as to how to resolve such interference.
c.
MIA-COM shall maintain the Communications System in accordance with the
plan described in Schedule A hereto and in accordance with all applicable laws,
including the Communications Act, as amended, and FCC rules and regulations.
3.5 MIA-COM AND SUBCONTRACTOR PERSONNEL
A.
MIA-COM shall designate a person to whom all communications from CITY OF
CLEARWATER may be addressed and who has the authority to act for
MIA-COM in connection with all aspects of this Service Agreement (the
"MIA-COM Manager"). MIA-COM may replace the MIA-COM Manager at any
time during the Term, upon 30 days prior written notice to CITY OF
CLEARW A TER. In the event of such replacement, a resume of the replacement
person will be provided to CITY OF CLEARWATER for approval, which will not
be unreasonably withheld.
B. MIA-COM shall, at all times, employ qualified and sufficient personnel for
completing work in the manner and time required.
C. CITY OF CLEARWATER shall have the right to review and approve or reject any
subcontractor utilized by MIA-COM in the maintenance of or any subsequent
construction or upgrade to the Communications System, which approval shall not
be unreasonably withheld.
D. CITY OF CLEARWATER retains the option to require the removal from the
City's premises of any employee, subcontractor or other person the CITY OF
CLEARWATER deems inappropriate for any reason whatsoever.
3.6 SOFTWARE ENHANCEMENTS
MIA-COM shall provide, at no cost to CITY OF CLEARWATER all applicable standard FX
Agreement software enhancements released during the Term of the Service Agreement, and will
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implement such upgrades on the Communications System as mutually agreed. Software upgrades
timing will not exceed five years. New features, such as but not limited to, Extended Addressing
for site equipment, and Secure Key must be purchased separately by the CITY OF
CLEARWATER at prices indicated on the State of Florida contract #725-001-01-1 pursuant to
which MIA-COM provides Products and services from its catalog at a discount of no less than
25% of their list prices.
All software upgrades will not cause any obsolescence or degradation of any equipment, service
or usability of the CITY OF CLEARWATER assets or equipment being used. Otherwise, all
upgrades will be backwards compliant as not to degrade or make equipment obsolete. MIA-COM
has the right to not implement that part of an upgrade if the software upgrades include new
features and functionality that is not supported by the City's existing equipment, or causes
obsolescence or degradation to the City's existing equipment. The CITY OF CLEARWATER
may at its option and expense, choose to replace equipment to support any new features and
functionality if so desired.
3.7 HARDWARE ENHANCEMENTS AND REPlACEMENT
MIA-COM at its expenses will replace only the site communications system equipment (not
including towers) as referenced in Schedule A within three years, as needed to maintain the grade
of service as called for in this Service Agreement. The twelve (12) existing CITY OF
CLEARW A TER consoles will be digitally enhanced within ninety (90) days of signing this
Service Agreement. The remaining control station consoles (- twenty-five (25) units) fall under
the classification of user equipment and therefore, may be upgraded at the CITY's discretion and
expense. These hardware enhancements and replacements are in consideration for the sole
marketing rights and use of the two towers, including the termination of payments pertaining to
the existing lease for the State of Florida System for the initial 20 year term.
Pursuant to an executed Tower Agreement (Schedule D), tower maintenance shall be
performed by MIA-COM at its expense.
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IV.
CITY OF CLEARW A TER RESPONSIBILITIES
4.1 PAYMENTS TO MIA-COM
CITY OF CLEARWATER shall make Quarterly Payments to MIA-COM as provided in Section
7.1 hereof.
4.2 OPERATIONAL PLANS
CITY OF CLEARWATER shall cooperate with MIA-COM in the implementation of all project
and operational changes and, where the change requires CITY OF CLEARWATER agreement,
consent or approval, such agreement, consent or approval shall be in writing and shall not be
unreasonably withheld.
4.3 TOWER AND SITE FACILITIES
A.
Existing Tower and Site Facilities Equipment: The City agrees to provide to
MIA-COM under Schedule D free and unfettered access to and use of the
communications towers and the site facilities equipment (shelters and generators)
identified and further described in Schedule A twenty-four (24) hours per day,
seven (7) days per week for consideration and transfer of user gear and system
enhancements as defined in section 7.2 hereof.
MIA-COM will have the ability to market and share revenues received from these
sites, per provisions of Sections 8.3 and 8.4 herein, for a period of not more than
the term of this Service Agreement.
During the term of the Service Agreement, the City will use its best efforts to:
(1) Maintain all underlying ground or other instruments necessary to
operate and market the towers;
(2) Make modifications to the ground leases as the City determines is
necessary;
(3) Execute any reasonable instruments necessary to support the
Service Agreement including assignment agreements as the City
deems necessary, certificates of estoppel, etc.;
(4) Have underlying property owners maintain a zero rental or nominal
lease rate;
4.4 ACCESS TO SITES
CITY OF CLEARWATER shall provide, at no cost, access for MIA-COM to all lands, buildings
or structures (including, without limitation, towers) owned, leased or controlled by CITY OF
CLEARWATER as may be necessary for MIA-COM to fulfill its obligations pursuant to this
Service Agreement and in compliance with existing leaseholders interests Necessity is to be
determined by the CITY OF CLEARW A TER.
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. 4.5 CITY OF CLEARWATER SYSTEM MANAGER
CITY OF CLEARWATER shall designate a contact person ("CITY OF CLEARWATER System
Manager") who shall be the primary interface with MIA-COM. CITY OF CLEARWATER may
designate a new System Manager at any time during the Term upon providing MIA-COM with
30 days prior written notice.
April, 2002
4.6 COMMUNICATIONS SYSTEM USE PLANNING
During the Term of this Service Agreement, CITY OF CLEARWATER shall notify M/ A-COM
of any CITY OF CLEARWATER sponsored or mandated activities, changes, plans or events
that may affect the operations of the Communications System.
4.7 USE OF FACILITIES AND SUPPORT SERVICES
CITY OF CLEARWATER shall, at no charge to MIA-COM:
A. Provide access to and use of the facility locations described in Schedule A, 24
hours a day, seven days a week
B. MIA-COM shall comply with all policies and procedures governing access to and
use of CITY OF CLEARW A TER facilities.
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C.
CITY OF CLEARWATER shall maintain the required connectivity, as set forth
in Schedule A, in good operating condition.
D. Upon entering into this Agreement and the Tower Agreement (Schedule D), any
and all obligations of MIA-COM to make lease payments to the CITY OF
CLEARWATER pursuant to that lease between the CITY OF CLEARWATER
and MIA-COM dated shall terminate although such lease shall
remain in full force and effect. In no event shall MIA-COM be considered a Third
Party Tower Tenant.
48 REGULATORY APPROVALS
CITY OF CLEARWATER and MIA-COM shall cooperate to obtain all regulatory licenses,
consents and approvals reasonably necessary for the ownership and operation of the
Communications System. CITY OF CLEARWATER shall pay all charges, fees and taxes in
regard to obtaining such licenses, consents and approvals.
In addition, CITY OF CLEARWATER and MIA-COM shall cooperate in obtaining the use of
needed sites including, but not limited to, all zoning and land use permits relating to the
Communications System.
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. 4.9 CITY OF CLEARWATER DISCLOSURE RESPONSIBILITIES
CITY OF CLEARWATER shall make available to the extent and manner allowed by ~ 119.01,
Florida Statutes, all financial records and other data or information to MIA-COM as related to the
terms of this agreement and beyond the scope of this agreement only if needed to satisfy SEC
compliance.
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v.
REPRESENTATIONS
5.1 MIA-COM REPRESENTATIONS
MIA-COM represents and warrants to CITY OF CLEARWATER that:
A. Organization: MIA-COM is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation.
MIA-COM is duly registered as a foreign corporation in the State of Florida, is
authorized to do business in the State of Florida, and is in good standing in said
state.
B. Authority: MIA-COM has full power and authority to enter into this Service
Agreement to consummate the transactions contemplated hereby. The execution,
delivery and performance by MIA-COM of this Service Agreement have been duly
authorized by all requisite corporate action. This Service Agreement has been
duly executed and delivered by MIA-COM, and constitutes a valid and binding
obligation of MIA-COM, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally or by general equitable principles.
C.
No Violation: To the best of MlA-COM's knowledge and belief, neither the
entering into of this agreement nor the consummation of the transaction
contemplated hereby will constitute or result in a violation or breach by
MIA-COM of any judgment, order, writ, injunction or decree issued against or
imposed upon it, or will result in a violation of any applicable law, order, rule or
regulation of any Governmental Authority.
D. Litigation: To the best of MlA- COM's knowledge and belief, there is no pending
or threatened litigation which if adversely decided to MIA-COM would have a
materially adverse effect upon MlA-COM's ability to meet its obligations pursuant
to this Service Agreement.
5.2 CITY OF CLEARWATER REPRESENTATIONS
CITY OF CLEARWATER represents and warrants to MIA-COM that:
A. Organization: CITY OF CLEARWATER is a City duly organized within the
State of Florida.
B.
Authority: CITY OF CLEARW A TER has full power and authority to enter into
this Service Agreement to consummate the transactions contemplated hereby. The
execution, delivery and performance by CITY OF CLEARWATER of this Service
Agreement have been duly authorized by all requisite City action. This Service
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Agreement has been duly executed and delivered by CITY OF CLEARWATER
and constitutes a valid and binding obligation of CITY OF CLEARWATER,
enforceable in accordance with its terms.
c.
No Violation: To the best of the CITY OF CLEARWATER's knowledge and
belief, neither the entering into of this agreement nor the consummation of the
transaction contemplated hereby will constitute or result in a violation or breach
by CITY OF CLEARWATER of any judgment, order, writ, injunction or decree
issued against or imposed upon it, or will result in a violation of any applicable
law, order, rule or regulation of any Governmental Authority.
D.
Litigation: To the best of the CITY OF CLEARWATER's knowledge and belief,
there is no pending or threatened litigation which if adversely decided to CITY OF
CLEARW A TER would have a materially adverse effect upon CITY OF
CLEARWATER ability to meet its obligations pursuant to this Service
Agreement.
E.
Existing System: The Existing System is in good operating condition with no
material coverage problems or material maintenance problems. The Existing
System has been maintained by CITY OF CLEARWATER under contract with
Communications International in accordance with the manufacturers
recommended maintenance including the upgrading of all software to the latest
version.
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VI. MEETINGS, REPORTING AND RECORDS
6.1 MEETINGS
Within 30 days following the Effective Date, the Parties will mutually determine an appropriate
set of periodic meetings to be held between CITY OF CLEARWATER and MIA-COM. At a
minimum, these meetings will be quarterly maintenance, performance reviews and management
meeting to review MlA-COM's current Service Levels, operating parameters and such other
matters as appropriate. All meetings will have a published agenda prepared by MIA-COM issued
sufficiently in advance of the meeting to allow meeting participants a reasonable opportunity to
prepare for the meeting.
6.2 REPORTING
The Parties will mutually determine an appropriate set of periodic reports to be issued by
MIA-COM to CITY OF CLEARW A TER. At a minimum, the following reports shall be provided
on a quarterly basis:
A.
B.
C.
D.
E.
F.
CITY OF CLEARWATER System usage;
Service request and resolution;
Corrective maintenance;
System outage report;
Service Level performance; and
Third Party Tower and Site Facility utilization.
6.3 RECORDS
A. MIA-COM shall maintain books, records and other compilations of data pertaining
to the requirements of this Service Agreement to the extent and in such detail as
shall substantiate claims for payment under this Service Agreement. All such
records shall be kept for a period of five years or for such longer period as is
specified herein. If any litigation, claim, negotiation, audit or other action
involving the records is commenced prior to the expiration of the applicable
retention period, all records shall be retained until completion of the action and
resolution of all issues resulting therefrom, or until the end of the applicable
retention period, whichever is later.
B. MIA-COM shall make available all financial records and other data and
information kept pursuant to paragraph A of this Section, 6.3, or as otherwise
needed by the CITY OF CLEARW A TER as related to the terms of this agreement.
C. This provision shall survive the expiration or earlier termination of this Service
Agreement.
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VII. CHARGES AND EXPENSES
7.1 QUARTERLY PAYMENTS
CITY OF CLEARWATER shall make Quarterly Service & Access Payments in the amount of
fifty-thousand dollars ($50,000) without set-off or withholdings and without demand or notice
from MIA-COM. The first payment shall be due on the first business day of the first month after
execution of this service agreement and each successive payment shall automatically be due per
calendar quarter. Such payment shall be reviewed and adjusted annually to reflect current usage
and performance and changes in the Consumer Price Index (CPI) - All Urban Consumers index.
The above Service and Access Payments shall be subject to increase should the system design
change or be modified at any time during the term of the agreement as agreed to by both Parties.
The above listed Service and Access Fee is based on a quantity of up to fourteen-hundred fifty
(1,450) CITY OF CLEARWATER radios utilizing the communications system. For each radio
over fourteen hundred fifty (1,450), CITY OF CLEARWATER will be charged an additional $15
per month per radio in addition to the cost of the subscriber unit itself.
7.2 SYSTEM ENHANCEMENTS AND USER GEAR TRANSFER
The system enhancements and transfer of user gear are being granted to the CITY OF
CLEARWATER from MIA-COM based on the sole marketing rights and use of the two towers,
including the termination of payments pertaining to the existing lease for the State of Florida
System for the initial 20 year term.
7.2.1 MIA-COM shall transfer ownership of all enhancements or improvements made to the
elements of the Communications System together with any enhancements made to the
Existing System as required in Sections 3.6 and 3.7 hereof.
7.2.2 MIA-COM shall transfer ownership of the User Gear as set forth on Schedule E on a
mutually agreeable schedule to the CITY OF CLEARWATER.
7.3 TOWER AND MAINTENANCE
MIA-COM shall have the sole marketing rights of the two CITY owned towers and associated
tower site facilities equipment as more fully described and subject to the limitations set forth in
Schedules A and D. During the term of the agreement, MIA-COM shall be responsible for tower
maintenance and any enhancements or improvements made to the towers and associated site
equipment if needed.
7.4 EVENT OF NON-APPROPRIATION
The CITY shall provide in its budget request that it submits each year a line item providing for
Quarterly Payments which shall become due in the next succeeding Fiscal Year. This Service
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Agreement shall automatically terminate at the end of then current Fiscal Year if a final budget
is not approved in accordance with Florida law that appropriates sufficient funds for the line item
providing for the Quarterly Payments for the succeeding Fiscal Year. Such action shall constitute
an Event of Non- Appropriation. Upon the occurrence of an Event of Non-Appropriation, the
CITY will not be obligated to make the Quarterly Payments beyond the then current Fiscal Year.
The CITY must deliver notice of the Event of Non-Appropriation to
MIA-COM and its assigns within at least thirty business days thereof. Under no circumstances
shall the failure of the CITY to appropriate monies to make Quarterly Payments constitute an
Event of Default by the City hereunder or require payment of a penalty; provided, however, that
the City, at MlA-COM's request, shall promptly transfer ownership of all Communications
System backbone equipment including, without limitation, the Radio System Infrastructure listed
in Schedule A to MIA-COM and continue to provide to MIA-COM free and unfettered access
to and use of the towers and site facilities so that MIA-COM may continue to market the towers,
serve then existing Third Party Tower Tenants or add additional or different Third Party Tower
Tenants as well as maintain and use MlA-COM's equipment on or about the towers for the
remaining period of the initial 20 year term.
In the event of any termination, MIA-COM shall continue to fully perform its maintenance and
service obligations under the Service Agreement so long as the CITY continues to pay amounts
equivalent to the Quarterly Payments.
7.5 TAXES
Taxes imposed by any taxing authority relating to the Services shall be the responsibility of
MIA-COM. CITY OF CLEARWATER shall cooperate with MIA-COM in attempting to obtain
any possible exemptions from taxes or reduction in such taxes.
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VIII. REVENUE SHARING
8.1 MARKETING RIGHTS
M/ A-COM shall have the sole right to market the tower and site facility space of the
Communications System to eligible Third-Party Tenants, which must be approved in writing in
advance by the CITY OF CLEARWATER, such approval not to be unreasonably withheld. The
CITY OF CLEARWATER shall be allowed to occupy space at no fee charged to the CITY OF
CLEARWATER and upon notice to M/ A-COM and M/ A-COM's approval of available space.
Such approval shall not be unreasonably withheld.
8.2 THIRD-PARTY LEASE NEGOTIATIONS AND REPORTING
MIA-COM shall have the sole right to negotiate all future leases for all Third-Party Tower
Tenants, which must be approved in writing in advance by the CITY OF CLEARWATER, such
approval not to be unreasonably withheld. On a quarterly basis, MIA-COM will supply CITY OF
CLEARWATER with a summary of all current leases by Third-Party Tower and Tenants. The
summary will be in electronic format and will include the Lessee's name, lease expiration date,
lease amount, etc. As requested by CITY OF CLEARWATER, MIA-COM will provide copies
of individual leases.
8.3 THIRD PARTY TOWER TENANTS REVENUE
The gross revenue generated from existing (as of the contract date) Third Party Tower and
Tenants shall not be divided between the parties; instead the City shall receive 100% and
MIA-COM shall receive 0%. In addition, the agreement between MIA-COM and the CITY OF
CLEARWATER concerning the State of Florida radio system shall be terminated upon entering
into this agreement. The gross revenue generated from tower lease payments from new, future
Third Party Tower Tenants shall be divided between the parties, with MIA-COM receiving 75%
and CITY OF CLEARWATER receiving 25%.
8.4 PAYMENT TERMS
MIA-COM shall pay cash or provide credit in goods and services to CITY OF CLEARWATER,
at the City's discretion, for its proportionate share of the revenues on a quarterly basis, within
thirty (30) days of the end of each quarter and shall provide with each payment, a summary setting
forth the name of each Third-Party Tenant, the revenues received during the quarter and the
portion of the revenues paid to CITY OF CLEARWATER for the quarter as provided in VI, 6.2
of this Service Agreement.
8.5 SURVIVAL OF REVENUE SHARING
As appropriate, the provisions of Article 8 and associated provisions of Articles 3 and 10 may
survive termination of this Service Agreement if this agreement is extended.
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. IX. DISPUTE RESOLUTION AND END OF TERM
OPTION
April, 2002
9.1 RESOLUTION OF DISPUTES
Should any disputes arise with respect to this Service Agreement, MIA-COM and CITY OF
CLEARWATER agree to act immediately to resolve any such disputes. Time is of the essence
in the resolution of disputes.
Continuing Responsibilities: The Parties agree that, existence of the dispute
notwithstanding, they will continue without delay to carry out all their
responsibilities under this Service Agreement that are not affected by the dispute.
Should either Party fail to continue to perform its responsibilities under this
Service Agreement in the accomplishment of all non-disputed work, any
additional costs incurred as a result of such failure to proceed shall be borne by
that Party.
9.2 END OF TERM OPTIONS
.
Following the end of the Initial Term, or any Extended Term CITY OF CLEARWATER shall
have the right to:
A. Extend the Term of this Service Agreement pursuant to Section 2.2 hereof upon
additional, mutually agreeable terms and conditions, if any; or
B. Not renew the Term of this Service Agreement, in which event neither Party shall
have any further obligation to the other Party except that the CITY OF
CLEARWATER shall extend services to Third Party Tower Tenants.
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DEFAULTS AND REMEDIES
10.1 CITY OF CLEARWATER EVENTS OF DEFAULT
CITY OF CLEARWATER shall be in default hereunder if any of the following events ("CITY
OF CLEARWATER Event of Default") shall occur:
A. CITY OF CLEARWATER fails to pay any of its obligations under this Service
Agreement when such obligation is due pursuant to the Prompt Payment Act, ~
218.70, et. seq., Florida; or
B. CITY OF CLEARWATER initiates a proceeding in any court, seeking the
liquidation, reorganization, debt arrangement, dissolution, winding up,
appointment of a trustee, receiver, custodian, or the like for all or substantially all
of its assets, and such case or proceeding shall continue undismissed, or unstayed
and in effect, for a period of 60 consecutive days; or an order for relief shall be
entered in an involuntary case under the federal bankruptcy laws or other similar
laws now or hereafter in effect.
c.
CITY OF CLEARWATER fails to observe any material term, covenant or
condition contained herein and such failure shall remain unremedied for a period
of 30 days after written notice is provided by MIA-COM. However, if default is
of such a nature that it could not reasonably be performed within 30 days, such 30-
day period shall be extended so long as CITY OF CLEARWATER takes
corrective action within such 30 days and thereafter diligently and continuously
works to cure the default. The provisions of 9.1 will be in effect and supercede
this paragraph C.
10.2 MIA-COM EVENTS OF DEFAULT
MIA-COM shall be in default hereunder if any of the following events ("MIA-COM Event of
Default") shall occur:
A. MIA-COM fails to pay any of its obligations under this Service Agreement when
such obligation is due and such failure shall remain unremedied for a period of 30
days after written notice is provided by CITY OF CLEARWATER; or
B.
MIA-COM initiates a proceeding in any court, seeking the liquidation,
reorganization, debt arrangement, dissolution, winding up, appointment of a
trustee, receiver, custodian, or the like for all or substantially all of its assets, and
such case or proceeding shall continue undismissed, or unstayed and in effect, for
a period of 60 consecutive days; or an order for relief shall be entered in an
involuntary case under the federal bankruptcy laws or other similar laws now or
hereafter in effect.
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c.
MIA-COM fails to observe any material term, covenant or condition contained
herein and such failure shall remain unremedied for a period of 30 days after
written notice is provided by CITY OF CLEARW A TER. However, if default is
of such a nature that it could not reasonably be performed within 30 days, such 30-
day period shall be extended so long as MIA-COM takes corrective action within
such 30 days and thereafter diligently and continuously works to cure the default.
The provisions of 9.1 will be in effect and supercede this paragraph C.
10.3 REMEDIES
Upon the occurrence of an Event of Default, the non-defaulting Party may either at law or in
equity, by suit, action, mandamus or other proceeding in any court of competent jurisdiction,
protect and enforce any and all rights under the laws of the State of Florida, or granted and
contained in this Service Agreement, and may enforce and compel the performance of all duties
and obligations required by this Service Agreement to be performed by the defaulting Party.
10.4 WAIVER OF DEFAULT
No delay or omission of by either Party to exercise any right or power accruing upon any default
shall impair any such right or power or shall be construed to be a waiver of any such default, or
an acquiescence therein; and every power and remedy given by Section 10.3 may be exercised
from time to time, and as often as may be deemed expedient.
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April, 2002
XI.
OTHER PROVISIONS
11.1 SOFTWARE LICENSE
MIA-COM grants to CITY OF CLEARWATER a non-transferable, nonexclusive, license to use
the software necessary to operate the Communications System. CITY OF CLEARWATER agrees
not to provide or otherwise make available any licensed program or portion thereof to any third
party and to hold such materials in confidence using a strict degree of care to protect the licensed
program from unauthorized disclosure.
CITY OF CLEARWATER may make copies of each licensed program provided in machine-
readable form as necessary for use and for archival purposes. CITY OF CLEARWATER may
make copies of any written materials, such as manuals, diagrams or other documentation, for its
own internal use.
11.2 FORCE MAJEURE
MIA-COM shall not be liable for delays in delivery or failure to perform due directly or indirectly
to: (1) causes beyond MlA-COM's reasonable control, (2) Acts of God, acts (including failure to
act) of any governmental authority (de jure or de facto), wars (declared or undeclared), riots,
revolutions, strikes or other labor disputes, fires, floods, sabotage, nuclear incidents, earthquakes,
storms, epidemics, (3) MlA-COM's inability to timely obtain necessary materials, items,
components or services from suppliers who are affected by the foregoing circumstances, or (4)
the failure of CITY OF CLEARWATER to perform its obligations hereunder in a timely manner.
The foregoing shall apply even though any of such causes exists at the time of signing of the
Service Agreement by MIA-COM or occurs after delays in MlA-COM's performance of its
obligations due to other reasons.
In the event of any delay or failure excused by this Section MIA-COM shall as soon as practical
notify CITY OF CLEARWATER and shall at the same time, or at the earliest practical date after
such notice, specify the revised delivery and performance dates. In the event of such delay, the
time of performance shall be extended for a reasonable time period to compensate for the time
lost by CITY OF CLEARWATER by reason of delay.
11.3 INSURANCE AND RISK OF LOSS
A. HOLD HARMLESS
MIA-COM agrees to hold the City, its elected officials, employees, and agents
harmless against all fines, penalties, and claims for bodily injury, sickness, disease,
death or personal injury or damage to property or loss of use resulting therefrom,
arising out of this Agreement unless such claims are a result of the City's negligence.
This provision shall survive the termination of this Agreement.
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B. PAYMENT ON BEHALF OF CITY
MIA-COM agrees to pay on behalf of the City, and to pay the cost of the City's legal
defense, as may be selected by the City, for all claims described in the Hold Harmless
paragraph. Such payment on behalf of the City shall be in addition to any and all
other legal remedies available to the City and shall not be considered to be the City's
exclusive remedy.
C. LOSS CONTROL/SAFETY
Precaution shall be exercised at all times by MIA-COM for the protection of all
persons, including employees, and property. MIA-COM shall be expected to comply
with all laws, regulations or ordinances related to safety and health and shall make
special effort to detect hazardous conditions and shall take prompt action where loss
control/safety measures should reasonably be expected.
The City may order work to be stopped if conditions exist that present immediate
danger to persons or property. MIA-COM acknowledges that such stoppage will not
shift responsibility for any damages from MIA-COM to the City.
D. BASIC COVERAGES REQUIRED
MIA-COM shall procure and maintain the following described insurance, except for
coverage specifically waived by the City, on policies and with insurers acceptable to
the City.
These insurance requirements shall not limit the liability of MIA-COM. The City
does not represent these types or amounts of insurance to be sufficient or adequate
to protect MlA-COM's interests or liabilities, but are merely minimums.
Such coverages shall protect MIA-COM from claims for damages for personal injury,
including accidental death, as well as any party directly or indirectly employed by
MIA-COM.
Except for workers compensation and professional liability, MlA-COM's insurance
policies shall be endorsed to name the City as an additional insured to the extent of
the City's interests arising from this Agreement.
Except for workers compensation, MIA-COM waives its right of recovery against the
City, to the extent permitted by its insurance policies.
MlA-COM's deductibles/self-insured retentions shall be disclosed to the City and
may be disapproved by the City. They shall be reduced or eliminated at the option of
the City. MIA-COM is responsible for the amount of any deductible or self-insured
retention.
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April, 2002
Insurance required of MIA-COM or any other insurance of MIA-COM shall be
considered primary but only to the extent of the negligence of MIA-COM in the
delivery of services under this contract, and insurance of the City shall be considered
excess, as may be applicable to claims which arise out of the Hold Harmless,
Payment on Behalf of City, Insurance, Certificates of Insurance and any Additional
Insurance provisions of this Agreement. Where no specific limit of coverage is
mentioned in this Agreement, the minimum limit of insurance coverage required by
the City shall be $1,000,000.
E. Workers Compensation Coverage
MIA-COM shall purchase and maintain statutory workers compensation insurance
for all workers compensation obligations imposed by state law and employers
liability limits of at least $100,000 each accident and $100,000 each
employee/$500,000 policy limit for disease.
MIA-COM shall also purchase any other coverage required by law for the benefit of
employees.
F. General, Automobile, And Excess Or Umbrella Liability Coverage
MIA-COM shall purchase and maintain coverage on forms no more restrictive than
the latest editions of the Commercial General Liability and Business Auto policies
of the Insurance Services Office.
Minimum limits of $1,000,000 per occurrence for all liability must be provided, with
excess or umbrella insurance making up the difference, if any, between the policy
limits of underlying policies and the total amount of coverage required.
G. Commercial General Liability Coverage. Occurrence Form Required
Coverage A shall include bodily injury and property damage liability for premises,
operations, products and completed operations, independent contractors, contractual
liability covering this Agreement, broad form property damage, and property damage
resulting from explosion, collapse or underground (x, c, u) exposures.
Coverage B shall include personal injury.
Coverage C, medical payments, is not required.
MIA-COM is required to continue to purchase products and completed operations
coverage, at least to satisfy this Agreement, for a minimum of three years beyond the
City's acceptance of any renovation or construction projects.
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April, 2002
Minimum limits of $1,000,000 per occurrence for all liability must be provided, with
excess or umbrella insurance making up the difference, if any, between the policy
limits of underlying policies and the total amount of coverage required.
H. Business Auto Liability Coverage
Business Auto Liability coverage is to include bodily injury and property damage
arising out of ownership, maintenance or use of any auto, including owned, non-
owned and hired automobiles and employee non-ownership use.
I. Excess Or Umbrella Liability Coverage
Umbrella Liability insurance is preferred, but an Excess Liability equivalent may be
allowed. Whichever type of coverage is provided, it shall not be more restrictive than
the underlying insurance policy coverage. Excess or Umbrella Liability insurance
shall include bodily injury and property damage coverage.
. MIA-COM shall purchase and maintain Excess or Umbrella Liability coverage over
and above its other liability coverage in the amount of $2,000,000.
J. Property Coverage for Tower
MIA-COM has the option but not the obligation to purchase and maintain for the life
of the Agreement, all risk/special perils (including sinkhole) property insurance (or
its equivalent) to cover loss resulting from damage to or destruction of the tower, and
its improvements, and any attached personal property or contents. The policy shall
cover 100% replacement cost, and shall include an agreed value endorsement to
waive coinsurance. The City shall be named as an additional insured.
K. Professional LiabilitylMalpracticelErrors or Omissions Insurance
If coverage is available in the insurance market, MIA-COM shall purchase and
maintain professional liability or malpractice or errors or omissions insurance
commensurate with the type of professional services, if any, to be rendered to the
City with minimum limits of $1,000,000 per occurrence.
If claims made form of coverage is provided, the retroactive date of coverage shall
be no later than the inception date of claims made coverage, unless the prior policy
was extended indefinitely to cover prior acts.
Coverage shall be extended beyond the policy year either by a supplemental extended
reporting period (ERP) of as great duration as available, and with no less coverage
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and with reinstated aggregate limits, or by requiring that any new policy provide a
retroactive date no later than the inception date of claims made coverage.
L. EVIDENCE/CERTIFICATES OF INSURANCE
Required insurance shall be documented in Certificates of Insurance that provide that
the City shall be notified at least 30 days in advance of cancellation, non-renewal or
adverse change.
New Certificates of Insurance are to be provided to the City at least 15 days prior to
coverage renewals.
If requested by the City, MIA-COM shall furnish complete copies of MlA-COM's
insurance policies, forms and endorsements.
For Commercial General Liability coverage MIA-COM shall, at the option of the
City, provide an indication of the amount of claims payments or reserves chargeable
to the aggregate amount of liability coverage.
Receipt of certificates or other documentation of insurance or policies or copies of
policies by the City, or by any of its representatives, which indicate less coverage
than required does not constitute a waiver of MlA-COM's obligation to fulfill the
insurance requirements herein.
11.4 AMENDMENT AND WAIVER
No supplement, modification, amendment or waiver of this Service Agreement shall be binding
unless executed in writing by both Parties. No waiver of any of the provisions of this Service
Agreement shall constitute a waiver of any other provision (whether or not similar) nor shall such
waiver constitute a continuing waiver unless otherwise expressly provided.
11.5 FURTHER ASSURANCES
The Parties shall with reasonable diligence, do all things and provide all reasonable assurances
as may be required to complete the transactions contemplated by this Service Agreement, and
each Party shall provide such further documents or instruments required by the other Party as may
be reasonably necessary or desirable to give effect to this Service Agreement and to carry out its
prOVIsIOns.
11.6 SEVERABILITY
Any provision in this Service Agreement which is held to be illegal or unenforceable in any
jurisdiction shall be ineffective to the extent of such illegality or unenforceability without
invalidating the remaining provisions and any such illegal or unenforceable provision shall be
deemed to be restated to reflect as nearly as possible the original intentions of the Parties in
accordance with applicable law.
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Public- Private Partnership
CITY OF CLEARWATER, FLORIDA
. 11.7 ENTIRE AGREEMENT
This Service Agreement constitutes the entire agreement between the Parties pertaining to the
subject matter hereof and supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the Parties and there are no warranties,
representations or other agreements between the Parties in connection with the subject matter
hereof except as specifically set forth in this Service Agreement.
April, 2002
11.8 GOVERNING LAW
This Service Agreement shall be governed by and construed in accordance with the laws of the
State of Florida.
11.9 PUBLIC REGULATION AND FREQUENCY LICENSES
This Service Agreement is subject to all of the terms and conditions associated with all of CITY
OF CLEARWATER outstanding FCC Licenses, applications and authorizations from the FCC
and other federal, state and local government agencies with respect to the Communications
System.
.
CITY OF CLEARWATER shall retain control over its licensed frequencies at all times as
required by Section 31O( d) of the Communications Act, as amended, and by FCC rules and
policies, and shall carry out all policy decisions, including approving the filing of FCC
applications, with respect thereto. Nothing in this Service Agreement shall give MIA-COM,
directly or indirectly, the right to control or direct CITY OF CLEARWATER exercise of ultimate
authority over its FCC licenses. In providing these services, MIA-COM shall take no action that
would cause any of the FCC Licenses to be revoked, or that would result in a transfer of control
or assignment of the FCC Licenses without necessary FCC approval. MIA-COM shall cooperate
with CITY OF CLEARWATER in providing all information necessary to ensure that all FCC
Licenses remain valid and in full force and effect.
This Service Agreement is not intended to convey any FCC license, channel or frequency
possessed by CITY OF CLEARWATER. MlA-COM's rights with respect to all such licenses,
channels and frequencies shall at all times be strictly limited to the management of any such
licenses, channels and frequencies.
11.10 LIMITATIONS OF LIABILITY
A. The entire liability of MIA-COM, its directors, officers, employees and agents and
customer's exclusive remedy with respect to any claim concerning MlA-COM's
performance or non-performance of the terms of this Service Agreement or any
claim for breach or default or for any other claim arising under or related in any
way to this Agreement shall be the recovery of CITY OF CLEARW A TER actual
direct damages but which shall in no event exceed the greater of (x), the amount
of any applicable insurance required by this Service Agreement, or (y), the amount
.
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of the Quarterly Payments made by the CITY OF CLEARWATER to MIA-COM
over the 36 months immediately preceding the event giving rise to such claim.
B.
In no event shall MIA-COM be liable for any loss of profits, revenues, customers
or contracts, loss of use of equipment, loss of data, business interruption, failure
to realize expected cost savings or for any indirect, consequential, incidental,
special, punitive or exemplary damages howsoever caused or arising, incurred by
CITY OF CLEARWATER even if MIA-COM had been advised of the possibility
of same or even if same were reasonably foreseeable.
c.
The provisions of this Section 11.10 shall apply whether the claim sounds in
contract, warranty, tort (including negligence and strict liability) or any other
statutory, legal or equitable grounds.
11.11 ASSIGNMENT
Each Party may assign its respective rights and obligations under this Service Agreement with the
express written consent of the other, which consent shall not be unreasonably withheld.
Notwithstanding anything to the contrary contained herein,' CITY OF CLEARW A TER
acknowledges and agrees that MIA-COM shall have the right, at any time and without the consent
of CITY OF CLEARWATER, to sell, transfer or assign all or any portion of its rights to the
payments described herein to any MfIliate of MIA-COM. MIA-COM and its permitted assignees
shall furthermore have the right, at any time and without the consent of CITY OF
CLEAR WATER, to collaterally assign all or any portion of its rights to such payments or to other
rights to enforce such payments provided herein to any financing party or lender or trustee in
regarp to Secured Debt.
However any such assignment of payments shall not relieve MIA-COM or MIA-COM 'S Surety
of their respective responsibilities, obligations, and liabilities under this Agreement.
11.12 NO THIRD PARTY BENEFICIARIES
The Parties acknowledge and agree that this Service Agreement is for the benefit of the Parties
hereto and any permitted assignee under Section 11.11. The Service Agreement is not intended
to confer any legal rights or benefits on any third party. There are no third party beneficiaries to
this Service Agreement or any part or specific provision thereof.
11.13 COUNTERPARTS
This Service Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one single agreement between the Parties.
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Public-Private Partnership
CITY OF CLEARWATER, FLORIDA
April, 2002
IN WITNESS WHEREOF, the Parties have executed and acknowledged this Service
Agreement, the day and year first above written.
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,Al'T:E:sT:
M/ A-COM PRIVATE
RADIO SYSTEMS, INC.
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By: (2 rJA
Assistant Corporate
Title: VP and General Counsel
Approved as to form:
CP
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AsSIStant Gty Attorney
Attest:
~ k LJ7,.,.~
Cynthia:~ oudeau . .
Gty Oerk
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