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09/19/1996 Agreement .annp I.. aallJaI' BRANCH OFFICE 3117 OVERSEAS HIGHWAY MARA lHON, FLORIDA 33050 TEL. (305) 2lJ9-6027 FAX (305) 289-1745 CLERK OF 1HE CIRCUIT COURT MONROE COUNTY 500 wmTEHEAD STREET KEY WFST, FLORIDA 33060 TEL. (305) 292-3550 FAX (305) 295-3660 ~p'" " -.' " BRANCH OPPICE - 0VIIItSEAS HIGHWAY PLANTATION ICIY, PLOItIDA 33O'JO 11iL (318) 852-7145 PAX (305) 852-n46 MEMORANDUM TO: James Roberts, County Administrator FROM: Isabel C. DeSantis... f\ C D Deputy Clerk ~", DATE: November 8, 1996 .... l1'""....A.....A....AI r As you know, at the Board meeting of September 19, 1996, the Board granted approval and authorized execution of the renewal of existing Contract which allows BeIlSouth to operate public telephones and equipment at said locations. Monroe County will receive from BellSouth, 26% of all revenues generated from these public phones. Attached hereto is a duplicate original of the subject contract for return to BeIlSouth. Should you have any questions concerning this matter, please do not hesitate to call. cc: County Attorney Finance File BELL SOUTH TELECOMMUNICATIONS @ Contract Number Group Bill Number BellSouth Telecommunications Location Provider Agreement TAN RF-1185 - A (01-96) This Location Provider Agreement ("Agreement") is made by and between BellSouth Telee Company") and "Location Provider"). business at I. Term of COl!J!!lct. This Agreement shallj:>e io~fect for 3 years, commencing from the date of execution below. This Agreement shall be renewed for r U> 0 additional t!JNt:2.. year period(s) after the original term, unless either party provides written notice of its inten- tion not to renew this Agreement at least sixty (60) days prior to the expiration of the original or any renewal term. Such notice will be sent to the address set forth in Section VII ("Notices"). Following the duration of the original term and renewal period(s), this Agreement shall be extended month to month until thir- ty (30) days written notice is provided by either party. II. Material. This Agreement applies to the provision of space by the Location Provider and grants the Company the exclusive rights, for the instal- lation, operation and maintenance of public telephones, enclosures, and assigned equipment furnished by the Company, whether existing, newly installed, or renovated, located at all existing and any future locations owned, operated, or managed by the Location Provider. The term "Material" is defined herein as the public telephone set and enclosure, including but not limited to guard post, concrete pads, mast poles, and site preparation. Where guard posts, con- crete pads, enclosures, pedestals, bumper pads, or other property of the Company are installed upon the premises owned, leased or otherwise under the supervision of Location Provider, such property shall remain in all respects that of the Company. The Company reserves the right to remove or relocate mate- rial which is subjected to recurring vandalism or insufficient local and intraLATA traffic, carried by the Company, to warrant the continuation of service. Such a right of removal or relocation shall not be exercised unreasonably by the Company. The Company will notify the Location Provider in writing of its intention to remove or relocate at least thirty (30) days prior to such action. Upon removal of Material by the Company, the Company shall restore said premise to its original condition, ordinary wear and tear excepted. However, the Company shall not be liable for holes placed in walls, pillars, or floors or other conditions on the premises which resulted from the proper installation of Material described herein. III. Alterations And Attachments · Location provider may not make alterations or place any attachments to Material provided by the Company under this Agreement unless agreed in writing by Company. IV. Remuneration - The Company will install, operate and maintain Material at no charge to Location Provider except as stated below. The Com- pany will pay Loca~= Provider, for space provided and in consideration for granting CompaPi' ~ exclusive rights for the installation and operation of Mate- rial, based on ~~ % of BellSouth local and intraLATA toll money in the box and ~ ~ % of BellSouth 0+ and 0- dialed local and intraLATA toll billed revenues. Remuneration is subject to a minimum daily average revenue, as defined above, of $4.00 calculated on a per-station basis. The Company will provide Location Provider with remuneration on a monthly basis or other, commencing with the first settlement periOd following the date of execution below. Such remuneration and compensation will be sent to the address set forth in Section VII C'Notices"). Location Provider agrees that all charges and remuneration policies are subject to change as required by the applicable Public Service Commis- sion or any other regulatory or judicial body with authority to mandate such changes, and that at no time shall any charge or remuneration policy differ from that allowed by any regulation or tariff of the applicable Public Service Commission or other such body whether such regulation or tariff is currently in exis- tence or is hereafter made known. Location Provider further agrees to cooperate with Company to assist in any reasonable way to assure compliance with all laws , rules and reg- ulations, federal, state and local requirements, including but not limited to, disabled customer access requirements. If at the request of Loca- tion Provider, Company furnishes devices, or in any other way provides for compliance with such requirements, any additional expenditures occasioned '~y costs of such compliance shall be reimbursed by Location Provider or deducted from Remuneration, otherwise payable under this Agreement, at Company's options. is ': \Q _:..' During the term of this Agreement, including any renewal period(s), the Company shall recognize an~rot~t the c~identi~ of all information regarding public telephone station locations provided, including revenue and remuneration paid to the Locatior1~~~r, an~all notI1isclose such infor- mation to any party other than the Location Provider. . .. ~:.~, ~ ," V. Location Provider Agrees To: '..,-.' a. Advise the Company of any location that has been closed or sold. :_ .,;'" 0:.... b. To the extent permissible by law, use .the C~mpany as its exclusive agent in all matt~rs re.lating t~p~bfic teleps~~s. :'~~: c. Reasonably protect the Material against willful abuse and report any damage, service failure or naz,ardous comtlons tQ1he Company. d. Provide necessary power and power source, and to provide suitable space, accessible to the public, and furtl:1ar repre€.ents that it is autho- rized to provide said space. .~- 8 '.~~? e. Permit the Company to display signs furnished by the Company upon mutual consent, and not to affix or allow to be affixed any other signs, equipment or information to the Material. f. Permit access to its respective facilities without charge or prejudice to Company employees or representatives, public telephone users, patrons or consignees. VI. Choice Of Law. The constructi (\, irf\erpr~tation and performance of this Agreement and all transactions under it shall be governed by the domes- ticlawoftheStateof~ R.1A'oA'\~,(ff' VII. Notices. Any notice or demand .xhich under the terms of this Agreement or under any statute must or may be given or made by either party shall be given or made by mail, postage prepaid, addressed to the respective party as follows: To Company: BellSouth Public Communications Attn: Contract Administrator 75 Bagby Drive, 1 st Floor Homewood, Alabama 35209 BellSouth: F/lN/) Items VIII through XX are on the reverse side of this form. Location Items VIII to XX as stated on the reverse side. In Witness Whereof, the parties hereto have executed this Agreement M reen Gratenstein (Printed Name) Title: Sales Manager/Pub. Comm.-Marketing-SO/SE Fla Title: Date: o "'19-~ Date: ~nti d on Revers, APPROVED AS TO FORM .' .. - . AND LEGAL SUFFIl'"IFN("V ~ 9- 13 ",..... r- . '. , RF-1185 - A Reverse VIII. Entire Agreement - This Agreement constitutes the entire Agreement between Location Provider and the Company and may not be modified or amended other than by written instrument executed by both parties. Any orders placed by Location ProvidE}r hereunder shall incorporate the typed, stamped or written provisions or data found thereon and in subordinate documents so long as the typed. stamped or written provision of data merely supplement, but do not vary the provisions of this Agreement. The Location Provider represents and warrants that it has the absolute and legal authority to make decisions concerning the provision of space for public telephones placed by the Company at the locations covered under this Agreement. IX. Service Negotiation Rights - This Agreement shall not control or affect the right of the Location Provider to select a Long Distance Carrier for interLATA service, nor shall selection of a Long Distance Carrier for interLATA service in any way operate to affect this Agreement except that in the event of legislative action or a regulatory or judicial decision which grants the Company the authority, Location Provider hereby grants the Company the right to select and contract. on the Location Provider's behalf, the local, intraLATA. and interLATA carrier selections for all pay telephones covered by this Agreement, pro- vided however, that the Location Provider does not have an existing Agreement with another entity for interLATA services. In the event Location Provider has such an existing AGreement with another entity for interLATA services, and such existing agreement for interLATA services terminates during the term of this AGreement between Location Provider and Company, then the rights granted by Location Provider to Company shall immediately become effective. X. Relocatlon/Removal- Material shall not be moved, removed, rendered inoperable or unusable, or made inaccessible to the public by Loca- tion Provider at the location in which it is installed. At the agreement of both parties, installed Material may be relocated by the Company. XI. Title - Title to Material shall be and remain in the Company. XII. Risk Of Loss - The Company and its insurers, if any. shall relieve Location Provider of all risks of loss or damage to the Material during the periods of transportation and installation of Material. However, Location Provider shall be responsible for loss or damage to Material located on its premise caused by fault or negligence of Location Provider or its employees. XIII. Default - In the event either party shall be in breach or default of any terms. conditions or covenants of this Agreement and such breach or default shall continue for a period of thirty (30) days after the giving of written notice thereof to either party by the other, then in addition to all other rights and remedies of law or equity or otherwise, the offended party shall have the right to cancel this Agreement without charge or liability. XIV. Assignment - In the event Location Provider sells, assigns, or otherwise transfers ownership or control of location where Material is located to a successor, Location Provider agrees to secure assignment of this Agreement to such successor, with written consent of the Company, which consent shall not be unreasonably withheld. In the event Location Provider does not secure such assignment to its successor, Location Provider shall be subject to pay the Company damages to compensate for the failure to comply with this provision. This Agreement may be transferred or assigned, in whole or in part, by the Company to any parent, successor, subsidiary or affiliated company of the Company. XV. Liability - Location Provider acknowledges that it is an independent contractor and that this Agreement shall not be construed as a contract of agency or employment. Location Provider shall be solely responsible and liable for compliance with all laws, rules and regulations and payment of all wages, unemployment, social security and other payroll taxes relating to Location Provider's employees including contribution from such persons, when required by law. The Company shall not be held liable for interruption of telephone service from any cause. The Company's liability for payment of Remuneration in the event of technical, computer or other difficulties resulting in the loss or unavailability of data necessary for calculation of remuneration's shall be limited as follows: (1) to an amount equal to the pro rata average daily remuneration for each day such data was lost or unavailable, in no event payable for less than a 24-hour period, as calculated based on the previous six month's remuneration. or jf that data is unavailable, based on the Company's reasonable estimate of the pro rata average daily remuneration lost. In no event shall any claim for consequential, special. reliance, punitive, or indirect damages be made by either party. XVI. Indemnification - Location Provider hereby agrees to release and indemnify the Company from any loss, cost, damage, expense, or liabil- ity arising in connection with the performance of this Agreement and caused, in whole or in part, by the acts or omissions, negligent or otherwise, of Loca- tion Pro ider, exceptto the extent Such loss. cost. damage. ex. pense. or liability arises from th"acts or omissions, ne. gligent ~therwise. of t~.e L c:;o..mm.!!. PJ/Y y.. " mpany hqlqs ~h~ rig~O ontrolli igatio~n th~ eve~t of a I~ al claim~ing filed.." t-;:'l.lr,- 5a.a nt tb uJcr/.-D c..(J ID:..--- . ,t:"4J _a, (t.l stiiuu/ '1log. ~ \, XVII. Conflict 0 Interest. Location pro~ ac now eoges that no officer or emp~1e of the Company has been employed, related. retained. induce'd, or directed by Location Provider to solicit or secure this Agreement with the Company upon agreement. offer, understanding, or implication involv- ing any form of remuneration whatsoever. Location Provider agrees, in the event of an allegation of substance (the determination of which will be solely made by the Company) that there has been a violation hereof, Location Provider will cooperate in every reasonable manner with the Company in establishing whether the allegation is true. Notwithstanding any provisions of this Agreement to the contrary, if a violation of this provision is found to have occurred and is deemed material by the Company, the Company may terminate this Agreement. XVIII. Supersede - This Agreement supersedes any existing Agreement, relating to public telephone service, between Location Provider and the Company. XIX. Severability - If any of the provisions of this Agreement shall be invalid.or unenforceable under the laws of the jurisdiction applicable to the entire Agreement, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the right and obligations of Company and Location Provider shall be construed and enforced accordingly. xx. Termination - The Company reserves the right to terminate this Agreement upon sixty (60) days written notice to Location Provider.