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{ 0lbi-0/o7 REVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO NEW CINGULAR WIRELESS, PCS, LLC, a Delaware limited liability company FOR USE OF PROPERTY LOCATED AT 400 NORTHWEST 2ND AVENUE, MIAMI, FLORIDA ALSO KNO WN AS THE POLICE PARKING GARAGE MIAMI, FLORIDA -R TJ- off --01-1s'9 TABLE OF CONTENTS RECITALS............................................................................................................................................................. 2 1. Purpose.......................................................................................................................................................3 2. Occupancy and Use Period..........................................................................................................................4 3. Continuous Duty to Operate........................................................................................................................4 4. Interest Conferred by This Agreement.........................................................................................................4 5. Use Fee......................................................................................................................................................5 6. Adjustment to Use Fee, Security and any Applicable Use Taxes..................................................................6 7. Late Fee...................................................................................................................................................... 6 8 Returned Check Fee 6 9. .................................................................................................................................... Security Deposit.........................................................................................................................................7 10. Increase of Security ....................................................................................................................................8 11. Improvements, Alterations, Additions, Partitions, Replacements, Repairs and Installations ..........................8 12. Condition of the Area and Maintenance.......................................................................................................8 14. Telecommunications Equipment.................................................................................................................9 15. FCC Grant and Licensure..........................................................................................................................10 16. Interference..............................................................................................................................................10 17. Utilities.....................................................................................................................................................12 18. .................. Access................................................................................................................................ ....12 19. City's Right of Entry.................................................................................................................................12 20. No Assignment or Transfer.......................................................................................................................13 21. No Liability for Damage or Injury.............................................................................................................13 22. Indemnifications and Hold Harmless.........................................................................................................13 23. Insurance and Payment/Performance/Maintenance/Restoration Bond.........................................................13 24. Licensee's Contractors..............................................................................................................................14 25. Cancellation by Request of Either of the Parties without Cause..................................................................14 26. Termination by City Manager for Cause....................................................................................................14 27. Termination by Either Party Due to Unacceptable Relocation....................................................................14 28. Cancellation of Revocable License Agreement with AT & T Wireless Services of Florida, Inc...................14 29. Removal of Property.................................................................................................................................15 30. Taxes and Fees.........................................................................................................................................15 31. Notices.....................................................................................................................................................16 32. Advertising...............................................................................................................................................17 33. Ownership of Improvements.....................................................................................................................17 34. Compliance with All Laws Applicable......................................................................................................17 35. Hazardous Materials. ................................................................................................................................ 18 36. Radon Gas................................................................................................................................................19 37. Conflict of Interest....................................................................................................................................19 38. Non-Discrimination..................................................................................................................................19 39. Affirmative Action....................................................................................................................................19 40. Minority/Women Business Utilization.......................................................................................................20 41. Waiver of Jury Trial... ............................................................................................................................... 20 42. Waiver......................................................................................................................................................20 43. Amendments and Modifications................................................................................................................20 44. Severability ..............................................................................................................................................21 45. Entire Agreement......................................................................................................................................21 EXHIBITA: Property............................................................................................... .....23 ................................... EXHIBITB: Area..............................................................................................................................................24 EXHIBITC: Insurance Requirements..............................................................................................................25 EXHIBITD: Corporate Resolution....................................................................................................................27 REVOCABLE LICENSE AGREEMENT This Revocable License Agreement ("Agreement") is made 2009. between the City of Miami (the "City") a municipal corporation of the State of Florida and New Cingular Wireless, PCS. LLC (the "Licensee"), a Delaware limited liability company registered to do business in Florida, herein collectively referred to as the "Parties". RECITALS WHEREAS, the City is the owner of the real property and improvements located at 400 Northwest 2°a Avenue, Miami, Florida, also known as the Police Parking Garage (the "Property'); and WHEREAS, on September 14, 1995, the City Commission passed and adopted Resolution No. 96-614, which authorized the City Manager and McCaw Communications of Florida, Inc., a wholly owned subsidiary of AT&T Wireless Services of Florida, Inc., to enter into a Revocable Permit which was issued October 27, 1995, for the installation, operation and maintenance of an unmanned micro cell telecommunications site at a certain portion of the Property ("Area") which was executed on September 29, 1995; and WHEREAS, on October 25, 2001 the City Commission further passed and adopted Resolution No. 01-1117, which authorized the City Manager and AT & T Wireless Services of Florida, Inc. to enter into a Revocable License Agreement for the operation and maintenance of an unmanned macrocell wireless teleconununications site at the Area that increased the amount of monthly use fees and was subsequently executed on November 26, 2001: and WHEREAS, subsequent to an acquisition by Cingular Wireless LLC, AT & T Wireless Services of Florida, Inc. merged into New Cingular Wireless Services of Florida, LLC which merged into New Cingular Wireless, PCS, LLC, now operates its antennae sites; and WHEREAS, the City and the New Cingular Wireless, PCS, LLC (the "Licensee") now desire to cancel the existing Agreement and enter into a new Revocable License Agreement for the use of the Area subject to an increase in monthly use fees; and WHEREAS, this Agreement is not assignable; and WHEREAS. this Agreement is revocable at -will by the City and without the consent of the Licensee: and WHEREAS, this Agreement does not transfer an interest in real property including any leasehold interest in real property owned by the City; and WHEREAS, this Agreement does not confer a right to use any real property for any general purposes; and WHEREAS, this Agreement does not convey or transfer any right to exclude the City from any real property; and WHEREAS, this Agreement pennits only certain; enumerated, specific and listed permitted uses and does not permit anything further and NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties hereby agree as follows: The foregoing recitals are hereby incorporated and made a part of this Agreement. 1. Purpose. The City is the owner of real property and improvements thereon at 400 Northwest 2"6 Avenue, Miami, Florida, a/k/a the Police Garage (hereinafter referred to as the "Property"), which is depicted in Exhibit "A" attached hereto and made a part of this Agreement. The City has determined that 192 square feet of enclosed space in the Police Garage and the roof space (the `'Area") depicted in Exhibit `B" attached hereto and made a part hereof, is not needed at this time by any of the City's offices or departments. Licensee ackno�rledaes that the sole purpose of the attached area map attached hereto as Exhibit "B" and made a part hereof is to identify the location of the Area within the Property. The City has expressed its desire to assist the Licensee in accomplishing its purpose of providing better reception to the public and in furtherance thereof, authorizes the Licensee to occupy and use the Area for the operation and maintenance of roof -mounted, telecommunications equipment, as hereinafter defined, under the conditions hereinafter set forth in this Agreement and for no other purpose ("Permitted Uses"). Licensee is also hereby limited to using the Area to transmit its own signals from the antennas placed on the Area. Licensee agrees that the highest point of said roof -mounted antennae shall meet and remain in compliance with all federal, state, and local laws, rules, regulations, ordinances, and other applicable legal requirements throughout the term of this Agreement. The exterior roof Area is located on the southern end of the Area as depicted in Exhibit B shall be used solely for the installation and maintenance of antennae. The Equipment Area ('`Equipment Area') of the Area is located under the antennae in the southern end of the Property. The City makes no representation or warranty in the attached area reap as to the useable or licensable square footage of the Area. 2. Occupancy and Use Period. The Effective Date of this Agreement shall be October 1. 2008 ("Effective Date") and shall continue on a month-to-month until the first to occur of the following: a) Cancellation or termination pursuant to Paragraph 25 herein; or b) Automatic termination, subject to the notice provisions of Paragraph 26 herein; or C) 'Revocation -at -will" by the City without prior notice; or. d) Termination by either party due to unacceptable relocation area pursuant to Section 27 herein subject to the notice provisions of Paragraph 27 herein. 3. Continuous Duty, to Operate. Except where the Area is rendered untenable by reason of fire or other casualty, Licensee shall at all times during this Agreement, occupy the Area upon the Effective Date and shall thereafter continuously conduct operations in the Area in accordance with the terms of this Agreement. 4. Interest Conferred by This Agreement Licensee agrees that this Agreement has been issued by the City to authorize Licensee to occupy the Area solely for the limited purpose of undertaking the Permitted Use and for no other purpose. The Parties hereby agree that the provisions of this Agreement do not constitute a lease and the rights of Licensee hereunder are not those of a tenant but are a mere personal privilege to do certain acts of a temporary character and to otherwise use the Area subject to the terms of this 4 Agreement. No leasehold interest in the Area is conferred upon Licensee under the provisions hereof and Licensee does not and shall not claim at any time any leasehold estate or ownership interest in the Area by virtue of this Agreement or its use of the Area hereunder. Additionally, Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Area by virtue of any expenditure of funds by the Licensee for improvements, construction, repairs, partitions or alterations to the Area which may be authorized by the City. 5. Use Fee. In consideration for this Agreement, Licensee agrees to pay to the City b • a monthly Use Fee in the amount of Two Thousand Three Hundred and Fifty Dollars and Zero Cents ($2,350.00) ("Use Fee"), plus any applicable Use .Taxes (excluding Sales Tax as defined in Florida State Bill 1338 or any subsequent similar legislation unless the Bill is repealed or modified or any subsequent similar legislation is enacted which would specifically exempt the City's property Area as used by Licensee from the payment of any Sales Tax) instituted under Florida statutes from time to time. Said Use Fee and any Applicable Use Taxes shall be paid in advance and in full on the Effective Date and on the first day of each month thereafter, without further notice or demand. In the event the Effective Date does not fall on the first day of the month. the Use Fee and any Applicable Use Taxes will be pro -rated on a daily basis for that month. Payments shall be made payable to the "City of Miami" and shall be mailed to: City of Miami, Finance Department, 444 SW 2r'a Avenue, 6'h Floor, Miami, Florida 33130, Attention: Treasury Management/Receipts, Reference: Police Antennae Site Use, or to such other address as may be designated by the City from time to time. Licensee agrees to allow the City to apply previous refundable Security Deposits (collectively, "Security") in the amount of Nine Thousand Five Hundred Dollars and Zero Cents ($9,00.00) owed by City to Licensee for Licensee's earlier decominissioned antennae sites as follows: firstly, to be applied as new Security due for the subject antennae site at the Area in the amount of Four Thousand Seven Hundred Dollars and Zero Cents ($4,700.00), and the remaining balance of Four Thousand Eight Hundred Dollars and Zero Cents ($4,800.00) to be applied as a credit towards any outstanding Use Fees owed by Licensee on the subject antennae site Area and/or to future Use Fees for the subject antennae site Area. 6. Adjustment to Use Fee, Security and any Applicable Use Taxes. Commencing nvelve (12) months from the Effective Date. or on the first day of the following month, if the Effective Date is not on the first of the month, and every twelve months thereafter (the "Anniversary Date"), Licensee agrees that the Use Fee and Security Deposit ("Security") shall be increased by three percent (3 % ) of the Use Fee and Security in effect for the immediately preceding Agreement Year and any Applicable Taxes shall be increased as required by Florida Statutes. Nothing in this paragraph shall be construed to grant Licensee the right to use the area or maintain the Property for a term greater than on a month-to-month basis. City agrees to provide Licensee with a completed IRS Fonn W-9, or its equivalent, upon execution of this Agreement and at such other times as may be reasonably requested by Licensee. 7. Late Fee. In the event that the City does not receive any installment of the Use Fee and any Applicable Taxes within five (5) days after they become due, Licensee shall pay to the City, in addition to the delinquent amount; a late fee equal to ten percent (10%) of the delinquent installment. Such late fee shall constitute additional fees due and payable to the City by Licensee upon the date of payment of the delinquent payment referenced above. Acceptance of such late fee by the City shall, in no event; constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent the City from the pursuit of any remedy to which the City may otherwise be entitled. 8. Returned Check Fee. In the event any check is returned to the City as uncollectible, the Licensee shall pay to City a returned check fee (the "Returned Check Fee") based on the following schedule: Returned Amount $00.01 — 50.00 $50.01 —300.00 $300.01 — 800.00 OVER $800.00 Returned Check Fee $20.00 $30.00 $40.00 5% of the returned amount 6 The Returned Check Fee shall constitute additional fees due and payable to City by Licensee. upon the date of payment of the delinquent payment referenced above. Acceptance of Returned Check Fee by City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount, nor prevent City from the pursuit of any remedy to which City may otherwise be entitled. 9. Security Deposit. Notwithstanding anything to the contrary, the City acknowledges that the Licensee has Four Thousand Seven Hundred Dollars ($4,700.00) on deposit as Security for the full and faithful performance by Licensee of all obligations of Licensee under this Agreement or in connection with this Agreement. If Licensee is in violation (as provided in Paragraph 26) beyond any applicable notice or cure period, the City may use, apply or retain all or any part of the Security for the payment of (i) any fee or other sum of money which Licensee was obligated to pay but did not pay, (ii) any sum expended by the City on Licensee's behalf in accordance with the provisions of this Agreement, or (iii) any sum which the City may expend or be required to expend as a result of Licensee's violation. In the event the City uses any portion of the Security, as described above. the Licensee will replenish the amount used by the City within fifteen days (15) of written notice by the City to Licensee to make such replenishment amount. The use, application or retention of the Security or any portion thereof by the City shall not prevent the City from exercising any other right or remedy provided for under this Agreement or at law and shall not limit any recovery to which the City may be entitled otherwise. Provided Licensee is not in violation of this Agreement, the Security or balance thereof, as the case may be, shall be returned to Licensee after the termination date or upon any later date after which Licensee has vacated the Area in the same condition or better as existed on the Effective Date, ordinary wear and tear excepted. Upon the return of the Security (or balance thereof) to the Licensee, the City shall be completely relieved of liability with respect to the Security. Licensee shall not be entitled to receive any interest on the Security. h 10. Increase of Security. If Licensee is in default under this Agreement more than two (2) times within any twelve (12) month period, in-espectively of whether or not such default is cured, then. v,ithout limiting City's other rights and remedies provided for in this Agreement or at law or equity, the Security shall automatically be increased by three (3) times the Security amount then in place. This increase shall be paid by Licensee to City forthwith on written demand. 11. Improvements, Alterations, Additions, Partitions, Replacements, Repairs and Installations. Except in the event of an emergency, Licensee shall not make any improvements; alterations, additions, partitions, replacements, repairs or installations required or permitted to be performed by Licensee without first receiving the written approval of the City Manager or his/her designee, which approval may be conditioned or withheld for any or no reason whatsoever. If City approves such request; no repair or alteration shall be commenced until all applicable plans and all applicable specifications, if any therefore, shall have been submitted to and approved by the City Manager or his/her designee. In the event of an emergency, Licensee may reasonably proceed to perform such repair work and shall immediately notify City of such work. 12. Condition of the Area and Maintenance. Licensee accepts the Area `'as is", in its present condition and state of repair and without any representation by or on behalf of City, and agrees that City shall, under no circumstances, be liable for any latent. patent or other defects in the Area. Licensee, at its sole cost, shall maintain the Area and Licensee's equipment in good order and repair at all times and in an attractive; clean, safe and sanitary condition and shall suffer no waste or injury thereto. Licensee shall be responsible for all repairs to the Area and to Licensee's equipment required or caused by Licensee's use of part thereof. Licensee agrees to make all changes necessary to the Area and to Licensee's equipment at Licensee's sole cost and expense in order to comply with all City, County and State code requirements and any Federal requirements for Licensee's occupancy thereof. I 3. Violations, Liens and Security Interests. Licensee. at its expense and with due diligence and dispatch. shall secure the cancellation or discharae of. or bond off same in the manner permitted or required by lain, all notices of violations arising from or otherwise in connection with Licensee's improvements or operations in the Area which shall be issued by any public authority having or asserting jurisdiction. Licensee shall promptly pay its contractors, subcontractors, suppliers and materials men for all work and labor done at Licensee's request. Should any such lien be asserted or filed, regardless of the validity of said liens or claims. Licensee shall bond against or discharge the same within fifteen (1 5) calendar days of Licensees receipt of notice of the filing of said encumbrance. In the event Licensee fails to remove or bond against said lien by paying the full amount claimed, Licensee shall pay the City upon demand any amount paid out by City, including the City's costs, expenses and reasonable attorneys' fees. Licensee further agrees to hold the City harmless from and to indemnify the City, its elected officials, officers, and employees against any and all claims; demands and expenses, including reasonable attorneys' fees, by reason of any claims of any contractor, subcontractor, material man, supplier, laborer or any other third person with whom Licensee has contracted or otherwise is found liable for, in respect to the Area. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent or agreement on the part of the City to subject the City's interest or estate to any liability under any mechanic's or other lien asserted by any contractor, subcontractor, materialsman or supplier thereof against any part of the Area or any of the improvements thereon and each such contract shall provide that the contractor must insert a statement in any subcontract or purchase order that the contractor's contract so provides for waiver of lien and that the subcontractor, materialman and supplier agree to be bound by such provision. 14. Telecommunications Equipment. Licensee shall specify in writing to the City, prior to the execution of this Agreement, any installation, usage, maintenance, repair or replacement in any manner at the site, a list of all equipment to be installed, used, maintained, repaired or replaced in any manner at this site, including, without limitation, antenna(s), cabling, -wiring ("Equipment List"). Licensee shall send a written and updated Equipment List to the City Manager or his/her designee within ten (10) days of installing, replacing, repairing, maintaining, or changing such equipment. I Licensee is responsible at its sole cost and expense for the installation. maintenance, operation, repair, replacement and removal, at its sole cost. expense and risk of Licensee, certain antennae and ancillary telecommunications equipment and wiring. The City reserves the right to require the relocation of the Licensee's antennae and wiring.. to an alternate site (the "Relocation Area") on the Roof of the Property upon thirty (30) days prior written notice to Licensee subject to Paragraph 2(d) and Paragraph 27 of this Agreement . Upon relocation by Licensee at its sole cost and expense, the Licensee's means of access and utility lines will be relocated at the Licensee's sole cost and expense. Thereafter, all references to the Roof Area or the Area of the Property will be deemed to be references to the Relocation Area Except as expressly provided in this Paragraph, in no event will the relocation of Licensee's equipment, or any part thereof, under this Paragraph, affect, alter, modify or otherwise change any of the terms and conditions of the foregoing Revocable Licensee Agreement. Upon any relocation or removal of equipment, Licensee shall restore the previous Area and the Relocation Area to safe and reasonably acceptable conditions as approved by the applicable City Department(s). 15. FCC Grant and Licensure. The Licensee shall provide City with a copy of the Licensee's FCC licensure and copy of the FCC and/or other government agency grant that awards frequencies to telecommunications carriers. 16. Interference. The Licensee shall be solely responsible to undertake its own investigation and perform studies as it deems necessary to analyze the source of frequency interference. Licensee shall not interfere with the frequencies of the City or any other licensee co -located at the Property. The Licensee agrees to give the City written notice of any frequency change as soon as possible by e-mail or facsimile to the Department of Public Facilities and thereafter to follow this informal notice by the official notice requirements of Paragraph 31 hereof. If, in the sole judgment of the City, any electrical, electromagnetic, radio frequency or other interference problem shall result from the operation of the facilities, City shall notify Licensee, in writing which notice may be provided via overnight delivery, and Licensee shall within twenty-four (24) 10 hours after receiving the City's notice, exercise due diligence to analyze the cause of the interference problem and make such modifications and corrections as are necessary to eliminate the interference problem. If the Licensee fails to cure the interference problem within said 24- hour period, then Licensee shall immediately notit, the City of its failure to cure the interference problem and indicate to the City the additional corrective measures it proposes to undertake in an effort to resolve the interference problem. After considering the impact of the interference upon the City in its ability to effectively protect the residents of Miami, the City. in its sole judgment, shall have the option to: a) Require Licensee to immediately cease use of the Area until such time as the interference problem is corrected; or b) Allow Licensee to continue operating while Licensee exercises due diligence to implement the proposed corrective measures and keep the City informed regarding the status of the corrective work. In either "a" or "b" above, if Licensee has exercised due diligence in attempting to correct such interference problem and same has not been corrected within sixty (60) days from the first notice by the City, the City may; at its sole option; either (i) terminate this Agreement forthwith, or (ii) may require Licensee to immediately remove the specified item of the facilities causing such interference from the Area. In the event the City exercises "(a)" above, Licensee shall be entitled to a refund of the Use Fee on a pro rata basis, but only if such interference problem is caused by actions not under the control of Licensee. In the event the City exercises "(b)" above, there shall be no refund or off -set of the Use Fee as a result of any cessation of use of such specified item or the Area, unless removal of such specified item renders the Area completely and fully unusable for the purposes stated in this Agreement. C) City will ensure that any future Agreements with third party users will require such third party users to correct interferences with this Licensee so as not to adversely affect or interfere with the subject tel econununications facility, the operations of the Licensee or the rights of the Licensee under this Agreement. City will notify Licensee by written correspondence, email or facsimile prior to granting any third party the right to install and operate communications equipment on the Property. 17. utilities. Licensee shall pay, for all utilities, including but not limited to, electricity, water, storm water fees. gas, telephone, garbage and sewage disposal used by Licensee during its occupancy of the Area, as well as all costs for installation of any lines and equipment necessary, including but not limited to installation of power generators. Licensee, at its sole cost, shall install all utilities required for its use and install separate utility meters required thereby and shall be billed directly by the applicable utility company for such services. In the event that the City is billed for any utility that is a result of Licensee's use of the Area, the Licensee shall reimburse such amount to the City within thirty (30) days of the date of the bill and any and all applicable charges on such utility bill shall be the responsibility of Licensee. 18. Access. The City shall provide Licensee ingress, egress and access to the Area adequate to install, maintain, operate, repair, replace and service the Area, Licensee's equipment, and the related facilities and to comply with its obligations hereunder at all times (24 hours/day, 7 days/week) during this Agreement at no additional charge to Licensee. 19. City's Right of Entry. The City shall have access to and entry into the Area at any time to: (a) inspect the Area, the equipment, and the facilities: (b) take techincal measurements or tests related to the facilities in conducting the inspection and testing of the equipment, however, the City shall not tamper nor perform any adjustments to Licensee's equipment without Licensee's written approval; (c) to perform any obligations of Licensee hereunder which Licensee has failed to perform after written notice thereof to Licensee, Licensee not having cured such matter within thirty (30) days of such notice; (d) to assure Licensee's compliance with the terns and provisions of this Agreement and all applicable laws, ordinances, rules and regulations; and (e) for other purposes as may be deemed necessary by the City Manager or his/her designee in the furtherance of the City's corporate purpose; provided, however, that the City Manager or his/her designee shall make a diligent effort to provide at least twenty-four (24) hours advance notice and Licensee shall have the right to have one or more of its representatives or employees present during the time of any such entry. The City shall not be liable for any loss, cost or damage to the Licensee by reason of the exercise by the City of the right of entry described herein for the purposes listed 12 above. The making of periodic inspection or the failure to do so shall not operate to impose upon the City any liability of an)- kind whatsoever, nor relieve the Licensee of any responsibility. obligations or liability assumed under this Agreement. 20. No Assignment or Transfer. Licensee cannot assign or transfer its privilege of occupancy and use granted unto it by this Aareement. 21. No Liability for Damage or Injury. In no event shall the City be liable or responsible for loss or damage to the Property, the Area. improvements; fixtures; equipment and/or any property belonging to or rented by Licensee, its officers, servants, agents, or employees that may be stolen; destroyed; or in any way damaged and Licensee indemnifies the City its officers, agents and employees from and against any and all such claims. 22. Indemnifications and Hold Harmless. The Licensee shall indemnify, hold harmless and defend the City from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising during the period of this Agreement; for any personal injury; loss of life or damage to property sustained in or on the Area, by reason of or as a result of Licensee's use or operations thereon; , including any work performed by any contractor or subcontractors hired by Licensee and from and against any orders; judgments or decrees which may be entered thereon and from and against all costs; attorneys' fees; expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof; provided, however, Licensee shall not be liable for the gross negligence or intentional misconduct of the City. 23. Insurance and Pa3,meat/Performance/Maintenance/Restoration Bond. In connection herewith, Licensee shall obtain and maintain or cause to be obtained and maintained throughout the term of this Agreement, the types and amounts of insurance coverage set forth in Exhibit 'C,' attached hereto and incorporated herein by this reference. If required by State, County, or City laws from time to time for work conducted on or use of municipal properties, Licensee shall obtain and maintain or cause to the obtained and maintained throughout or during the term of this Agreement, as applicable, such types and amounts of payment, performance. maintenance, or restoration bond(s) as shall be required to be reviewed and approved by the City's Risk Management Department in coordination with Licensee's Risk Management Department. 24. Licensee's Contractors. Licensee shall submit the name of any proposed contractor to the City prior to such contractor performing any work on behalf of Licensee in the Area. 25. Cancellation by Request of Either of the Parties without Cause. Either party may cancel this Agreement at any time by giving sixty (60) days written notice to the non -canceling party prior to the effective date of the cancellation. 26. Termination by City Manager for Cause. If Licensee in any manner violates the restrictions and conditions of this Agreement, then, and in the event, after ten (10) days written notice given to Licensee by the City Manager within which to cease such violation or to correct such deficiencies and upon failure of Licensee to do so after such written notice, within said ten (10) day period, this Agreement shall be automatically canceled without the need for further action by the City. 27. Termination by Either Party Due to Unacceptable Relocation. If City and/or Licensee individually deem that any new relocation area necessitated pursuant to Section 14 herein is unacceptable for Licensee's continued use, then either party may terminate this Agreement after thirty (days) written notice to the other party. 28. Cancellation of Revocable License Agreement with AT c& T Wireless Sen7ices of Florida, Inc. Licensee agrees that upon execution of this Agreernent, the City shall automatically cancel the Revocable License Agreement dated November 26, 2001 between the City of Miami and AT & T Wireless Services of Florida, Inc. without the need of further action by the Parties. 14 29. Removal of Property-. In either event of cancellation or termination pursuant to Paragraphs 25, 26, or 27 , the Licensee shall. no later than sixty (60) days from the date any such notice has been sent by either the City or Licensee according to the respective notice provisions thereof.. at its sole cost and expense; remove all facilities, personal property, fixtures and equipment from the Area and Licensee agrees to promptly repair any damage to the Area caused thereby; clean up any remaining debris and restore the Area to the condition existing as of the Effective Date. Should Licensee fail to repair any damage caused to the Area within ten (10) days after receipt of written notice from the City directing the required repairs, the City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay the City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. In the event Licensee fails to remove its facilities, personal property, equipment and fixtures from the Area within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without liability, may remove and/or dispose of same as the City sees fit, all at Licensee's sole cost and expense. City and Licensee shall have the option to determine whether the parties believe it is in their mutual best interests for Licensee to donate to the City any equipment and related accessories that can be utilized by the City and is not cost effective for Licensee to remove. Such determination shall be made by the City Manager and his/her designee and Licensee's authorized representative by e-mail or written correspondence. Licensee shall be required to pay any Use Fees and any applicable charges due and payable by the Licensee until such time that Licensee has vacated and removed all equipment from the Property or has otherwise notified the City of a tennination or cancellation date and reached an agreement with the City to donate Licensee's equipment to the City. 30. Taxes and Fees. Licensee shall pay before an), fine, penalty, interest or costs is added for nonpayment, any and all charges, taxes, fees or assessments levied against the Area, its proportionate share of the Property and/or against any occupancy interest or personal property of any hind, owned by or placed in, upon or about the Area or the Property by Licensee, including, but not limited to, ad 15 valorem taxes, fines, fees and parking surcharges. In the event Licensee appeals a tax or fee, Licensee shall immediately notify the City of its intention to appeal said tax or fee and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to the City or other security reasonably satisfactory to the City in an amount sufficient to pay one hundred percent (100%) of the contested tax or fee with all interest on it and costs and expenses, including reasonable attorneys' fees., to be incurred in connection with it. 31. Notices. All notices or other communications which may be given pursuant to this Agreement shall be in writing and shall be deemed properly served if delivered by personal service or by certified mail addressed to the City and Licensee at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or if by certified mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier: CITY OF MIAMI City of Miami Office of City Manager 444 SW 2 Avenue, IOt" Floor Miami. FL 33130 WITH COPIES TO City of Miami City Attorney's Office 444 SW 2 Avenue, 9th Floor Miami, FL 33130 Attention: City Attorney Citv of Miami Department of Public Facilities 14 LICENSEE New Cingular Wireless Services, PCS, LLC c/o AT & T Network RE Administration Re: 10070183 MI0559/POLICE GARAGE 12555 Cingular «lay Alpharetta, GA. 30004 NREA National -877-231-5447 WITH COPY TO: New Cingular Wireless PCS, LLC AT & T Legal Department Attention: Network Counsel Re: 10070183 M1059P/POLICE GARAGE 5565 Glenridge Connector, Suite 1725C Atlanta GA. 30342 Asset Management Division 444 SW 2 Avenue, 3rd Floor Miami, FL 33130 Attention: Director 32. Advertising. Licensee shall not permit any signs or advertising matter to be placed in or upon the Area without having first obtained the approval of the City Manager or his/her designee, which approval may be withheld for any or no reason; at his sole discretion. Licensee shall, at its sole cost and expense, install, provide, and maintain such sign decoration, advertising matter or other things as may be permitted hereunder in good condition and repair at all times. Licensee must further obtain approval from all governmental authorities having jurisdiction, and must comply with all applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the cancellation of this Agreement Licensee shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing permitted hereunder from the Area. If any part of the Area is in any way damaged by the removal of such items, said damage shall be repaired by Licensee at its sole cost and expense. Should Licensee fail to repair any damage caused to the Area within ten (10) days after receipt of written notice from the City directing the required repairs, the City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay the City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. Licensee hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Area or the Property an appropriate sign indicating the City having issued this Agreement. 33. Ownership of Improvements. As of the Effective Date and throughout the Use Period, the personal property or equipment will be solely owned by New Cingular Wireless, PCS. LLC. However, the City of Miami is the sole owner of the Property. 34. Compliance with All Laves Applicable. Licensee accepts this Agreement and hereby acknowledges that Licensee's strict compliance with all applicable federal, state and local la-ws, ordinances and regulations, 17 including without limitation the rules of the Federal Conmlumcations Commission_ the Federal Aviation Administration and the Cite Building.. Zonma and Fire Codes.. is a condition of this Agreement. and Licensee shall comply therewith as the same presently exist and as they may be amended hereafter. This Agreement shall be construed and enforced according to the laws of the State of Florida. 35. Hazardous Materials. The Licensee shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules; rulings, policies, orders, administrative actions and administrative orders, including, without limitation, any Hazardous Material Laws ("Hazardous Materials Laws") relating to industrial hygiene, environmental protection or the use; storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials", or "Toxic Substances, under any such laws, ordinances or regulations (collectively "Hazardous Materials"). The Licensee shall, at its sole cost and expense.. procure, maintain in effect, and comply with all conditions of any and all permits, licenses and other govenitnental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Area required for the Licensee's use, or storage of, any Hazardous Materials in or about the Area in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon termination or expiration of this Agreement, the Licensee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Area by the Licensee or at the Licensee's direction, to be removed from the Area and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. The City acknowledges that it is not the intent of this Article to prohibit the Licensee from operating in the Area for the uses described in the Section of this Agreement entitled "Purpose." The Licensee may operate according to the custom of the industry, so long as the use or presence of Hazardous Materials is strictly and properly monitored according to, and in W compliance with, all applicable governmental requirements. The requirements of this Section of the Agreement shall survive the expiration or termination of this Agreement. 36. 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 «-ho 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. User may have an appropriately licensed person test the Area for radon. If the radon level exceeds acceptable EPA standards, the City may choose to reduce the radon level to an acceptable EPA level, failing which either party may cancel this Agreement. 37. Conflict of Interest. Licensee is aware of the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et. seg.) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terms of said laws and any future amendments thereto. Licensee covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Agreement, has any personal financial interests, direct or indirect, with the City. Licensee further covenants that, in the performance of this Agreement, no person or entity having such conflicting interest shall be utilized in respect to services provided hereunder. Any such conflict of interest(s) on the part of Licensee, its employees or associated persons, or entities must be disclosed in writing to the City. 3s. Non -Discrimination. Licensee shall not discriminate as to race, color, religion,sex, national origin, age, disability or marital status in connection with its occupancy and use of the Area and improvements thereon. 39. Affirmative Action. Licensee shall have in place an Affirmative Action/Equal Employment Opportunity Policy and shall institute a plan for its achievement which will require that action be taken to K provide equal opportunity in hiring and promoting for women. minorities. the disabled and veterans. Such plan will include a set of positive measures which will be taken to insure non- discrimination in the work place as it relates to hiring, firing. training and promotion. In lieu of such a policy/plan, Licensee shall submit a Statement of Assurance indicating that their operation is in compliance with all relevant Civil Rights laws and regulations. 40. MinoritriT/Women Business Utilization. Licensee shall make every good faith effort to purchase/contract fifty-one percent (5 1 %) of its annual goods and services requirements from Hispanic. Black and Women businesses/professionals registered/certified with the City Office of Minority/Women Business Affairs. The City will make such lists available to the Licensee at the time of the issuance of the Agreement and the City's Office of Minority!Women Business Affairs will routinely provide updates. 41. Waiver of Jury Trial. The parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right either may have to a trial by jurS in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of. under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct; course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and Licensee entering into the subject transaction. 42. Waiver. No failure on the part of the City to enforce or insist upon perfonnance of any of the terms of this Agreement, nor any waiver of any right hereunder by the City, unless in writing. shall be construed as a waiver of any other term or as a waiver of any fixture right to enforce or insist upon the perfoi7nance of the same term. 43. Amendments and Modifications. No amendments or modifications to this Agreement shall be binding on either party unless in writing, signed by both parties and approved by the City Manager. The City Manager 20 NN-\"e t-� stb� fie: u6 41�-is authorized tothis Agreement as needed;. Licensee's South Florida Network Executive Director is authorized to amend or modiffi, this Agreement as needed as indicated in Licensee's corporate authorization attached hereto, incorporated hereby, and made a part hereof as Exhibit D. 44. Severability. Should any provisions, paragraphs, sentences, words or phrases contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unla,AU under the laws of the State of Florida or the City, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws, and the same may be deemed severable by the City, and in such event, the remaining terms and conditions of this Agreement shall remain umnodified and in full force and effect. 45. Entire Agreement. This instrument and its attachments constitute the sole and only agreement of the parties hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date. Any prior agreements.. promises.. negotiations or representations not expressly set forth in this Aureement are of no force or effect. IN WITNESS IAIHEREOF, the parties hereto have executed this Agreement of the day and year first above written. AT'T'EST: Priscilla A. Thompson City Clerk LESSOR CITY OF MIAMI, a municipal corporation of the State of Florida Pedro G. Hernandez City Manager 21 APPROVED AS TO INSURkNCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: LeeA n7 Brehm Julie O. Bru Director of Risk Management Cit}- Attorney LICENSEE: ATTEST: New Cingular Wireless PCS, LLC, a Delaware limited liability company, registered to do business in Florida By: AT&T Mobility Corporation Its: Manager Signature, Secretary Signature Print Name Print Name Print Title Print Title Sianature Print Name Print Title 22 EXHIBIT A.: Property FIT. (12) EX6RNG CNGUTAR - . AJJTp0U5 TO BE PJ`IAC- - RED VINN (9) NEW -� CRCULM AN RAS p _gON�OAMENNAS PATI CENTER _ __ _ � _ C H 1 ) STAIRWELL E2157INC CIRCULAR DOG R ^ !OUSE W/ SPACE TO - OT5RNG CINOULAR 7As CwRLES OAIE NEW GO. .. EQUIPMENT ROOM EXISTING CINGULIR EOUIPHENT ROOM 1, BELOW (a) E31611NG am" AHIDRLAS TO BE UP R6>D1xfD TRm (3) NEW C C..mm AHIflBAS " DOWT7 .. :. . rl r i� BUILDING - . (1) GA(R3AR) 13E o o, - - ntRAcDm MRI/ GJ:tN,W ANTP3JIN3 (4)GWRNG OroAA�It BU9���9�0� RETMACFD MTM (3) NEW -O ACL ?�/•L `� /\ / / \ "%/ \��/\ �✓ "l /� l� \�\/ J`/�%\^/n\"• ,�/ /\//\ //\' i�/ n CNMAM AIREN'm PARRND MEA /.�.0 ��.\. is /h�i\.. // /�//,/ �\/1�\n �\�'ii\\i\��}��S\,\"\'\,• BOWING CURINE - NOTES: ROOF PLAN WEST ELEVATIO 1. NEW ONCULAR COAX CABLES SHALL. BE ROUTED ON SCALE 1/72 1'-0' (22 . 31-) TRS FjRSTING CAOU WPF09T SYSTEM SCALE 1/15 1'-0" (11' 2. NEN CWGULAR COU( CABLES ROUTED WJITBN HURTING NIEf00R SINLL BE FIRE PESISTNR. ' LEGEND L WHEN THERE IS A NEED FOR ADDING NEW ENTRY PORTS ON SHELTER. SUMOINRACTOR 5Nµ1 USE ON OF TIE. FOLLOWING OPTIDNS: SIZED LVCROFTECT OR EQ60 c •�Et POR[ PANEL ON INSIDE k OUTStOE WN15 OF THE A CORE DRILL WDMDUAL HOLES FOR EACH COAX AND INSTALL PROPERLYJ EXST. EQUIP. C ] fVNRE ECUIP- COST. CABLE TRAY O SHELTER, AND AODW6 BOOTS ON OUTSIDE ONLY. 0 1L .. ::, '+' ,- .•.^.R.. CUT OUT A SINGLE OPENLIC EARCE ENOUGH TO NTAUWDATE All NEW WMX PORTS. INSTALL -PROP• C ';, 1 ED fAllC ADREF)I!OR £OUNNiTIi ENTAY PORT PNJFl NJO CONDUCTORS AND RACEWAY TO B. BOOTS ON OUTSIDE OF SHELTER ONLY. FR.wE-IN INTER OR tKKF AHD FINISH TO IMTCN D{ISTIIIC EJ�Ifij''PORT NJD: SHELTER TITfFRlOR OD IJOT CUT EXISTING PROPOSED EQUIP. © BE FURNISHED h INSTALLED BY REINFORCING N SHELTER MALL WIMOUT APPROVAL FROM SNELTER "WrACTURER. 'f i-•-..`,. . " rf .r .'L:_..:'J'" •, '. '. EUBCOtI1FJACNR E0 C -2. SUBCONTPACfOT SIutL INSTALL NEW CORY GROUND BMS. WIIEAC NCCFSS'ARY ANO OR INOGTEO.B?�BfGMft REPRISCMA7ITE.— ....:I CWGUTAR WIRELESS MACTECF SITE NUMBER: SFV-MIAMFL-MI59 � ' .,); •.L.ROOF PLAN ILOING ELEVATION ,`_. . SITE NAME: MI59 r XCIn9UIa1 J 0 1/le M 14u01 TtlR PfMnT H W ma WnOc Omtaeee� Cp6uOK Ac 400 NW 2nd AVENUE ,�` WRIELESS ... :..' ,t 54�e.1 anADS NMW,R 33128 ms R>bJ v1-. ..R ne. Ixll eae_uee 'fµ'ui, 6706-05-0687(89)SFL-M159-02 D EXHIBIT C: Insurance Requirements I. Commercial General Liabilitv Limits of Liability Bodily Injury and Propert}, Damage Liability Each Occurrence $ 1,000,000 General A-areaate Limit $ 2.000,000 Products/Completed Operations $ 1;000,000 Personal and Advertising Injur}r $ 1,000,000 Damage to Rented Premises $ 100,000 Endorsements Required City of Miami included as an Additional Insured Employees included as insured Independent Contractors Coverage II. Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Owned, Hired, Borrowed and Non Owned Autos Any One Accident $ 1,000,000 Endorsements Required City of Miami included as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida The City reser es the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Licensee. The Grantee shall provide any other insurance or security reasonably required by the City. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: 25 The company must be rated no less than "A" as to management, and no less than "Class V" as to Financial Strenath, by the latest edition of Best's Insurance Guide. published by A.M. Best Company, Oldwick. Ne�v Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. A current evidence and policy of insurance evidencing the aforesaid required insurance coverage shall be supplied to the City of Miami, Department of Public Facilities /Asset Management Division at the execution of this Agreement and a new evidence and policy shall be supplied at least twenty (20 ) days prior to the expiration of each policy period. Receipt of any documentation of insurance by the City or by any of its representatives, which indicates less coverage than required does not constitute a waiver of the Licensee's obligation to fulfill the insurance requirements herein. In the event Licensee shall fail to procure and place such insurance, the City may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by Licensee to the City as an additional fee upon demand and shall in each instance be collectible on the first day of the month or any subsequent month following the date of payment by the City. Licensee's failure to procure insurance shall in no way release Licensee from its obligations and responsibilities as provided herein. 26 NEW CINGULAR WIRELESS PCS, LLC, ASSISTANT SECRETARY'S CERTIFICATE 1, Carolyn J, Wilder, do hereby certify that I am a duly elected, qualified and acting Assistant Secretary of New Cingular Wireless PCS, LLC, a Delaware limited liability company (the "Company"), and as such i am authorized to execute this certificate. .In such capacity, I further certify that: 1. A• Schedule of Authorization (the "Schedule,), required to execute agreements, was duly adopted by the sole Member and sole Manager of the Company, and said Schedule remains in fall force and effect on the slate hereof. 2. Carlos Sanchez, Network Operations Executive Director is authcrized and empowered under the current Schedule to execute and deliver in the name of and an behalf of the Company the Revocable License Agreement issued by the City of 1�1iami to New Cingular Wireless PCS, LLC -relating to AT&T Cell Site MI0591`/POLICE GARAGE FA: 10070183. IN WITNESS WMRE OF, the undersigned has affix -ed his signature this 7th day of August, 2008, Carolyn J, Wilder, Assistant Secretary (w Plnho sp .' of In, U.S 111Y.1 C lew EXHIBIT D: Corporate Resolution AT&T Mob MY "Ut 5555 Gtenrldge conneuor sulte 1700 ' Atlanta, GA 30342 NEW CINGULAR WIRELESS PCS, LLC, ASSISTANT SECRETARY'S CERTIFICATE 1, Carolyn J, Wilder, do hereby certify that I am a duly elected, qualified and acting Assistant Secretary of New Cingular Wireless PCS, LLC, a Delaware limited liability company (the "Company"), and as such i am authorized to execute this certificate. .In such capacity, I further certify that: 1. A• Schedule of Authorization (the "Schedule,), required to execute agreements, was duly adopted by the sole Member and sole Manager of the Company, and said Schedule remains in fall force and effect on the slate hereof. 2. Carlos Sanchez, Network Operations Executive Director is authcrized and empowered under the current Schedule to execute and deliver in the name of and an behalf of the Company the Revocable License Agreement issued by the City of 1�1iami to New Cingular Wireless PCS, LLC -relating to AT&T Cell Site MI0591`/POLICE GARAGE FA: 10070183. IN WITNESS WMRE OF, the undersigned has affix -ed his signature this 7th day of August, 2008, Carolyn J, Wilder, Assistant Secretary (w Plnho sp .' of In, U.S 111Y.1 C lew