09/15/2010 AgreementDANNY L. KOLHA GE
CLERK OF THE CIRCUIT COURT
DATE: September 23, 2010
TO: Lisa Druckemiller, Senior Administrator
Technical Services Division CV
FROM: Isabel C. DeSantis, D.C.
At the September 15, 2010 BOCC meeting, the Board granted approval to enter into an
agreement "In -Building Service Enhancement Agreement," ISE Agreement (Standalone) 110508,
with AT&T for the installation of an In -Building Cellular Repeater System to provide improved
cellular service for AT&T cellular telephones inside the Murray E. Nelson Government and
Cultural Center. This approval will rescind the approval on 7/21/10 of same item without
Exhibit..
Enclosed is a duplicate original the above -mentioned for your handling. Should you have
any questions, please do not hesitate to contact this office.
cc: County Attorney
Finance
File
IN -BUILDING SERVICE ENHANCEMENT AGREEMENT
This In -.Building Service Enhancement Agreement ("Agreement") is entered into by and between AT&T
Mobility National Accounts LLC ("AT&T") and Monroe County Board of County Commissioners
("Customer"). It is effective as of the last date signed by the parties (the "Effective Date").
AT&T, through its licensed affiliates, provides Customer with wireless radio telecommunications services
("Service") pursuant to a separate agreement. This Agreement describes the terms and conditions under which
AT&T will provide equipment to Customer, to be installed on Customer's premises located at 102050 Overseas
Highway, Key Largo, FL 33040 (the "Premises"), in order to provide enhanced radio frequency ("RF") coverage
from AT&T's wireless network.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, the parties hereto
agree as follows:
Definitions.
1.1 "Distributed Antenna System" or "DAS" means antennas mounted on the interior of a
building that provide enhanced RF coverage to the interior of the building, and the cabling and distribution
systems required to connect the antennas to the Electronics.
1.2 "Electronics" means all electronic equipment within the DAS.
1.3 "Frequency" or "Frequencies" means the frequencies for which an affiliate of AT&T
holds a license from the Federal Communications Commission ("FCC") for use in providing wireless
telecommunication services and features.
1.4 "Interference" means undesired RF energy that can degrade the quality of Service on
licensed frequencies, which may result in distorted conversations, dropped calls, and blocked calls for AT&T's
licensed affiliates or other carriers.
1.5 "Microcell" means the AT&T -owned Microcell(s) and any related equipment.
1.6 "Network" means the infrastructure that is used to provide wireless radio
telecommunications services on AT&T's Frequencies.
1.7 "Repeater" means the AT&T -owned Repeater(s) and any related equipment.
1.8 "System" means a customized wireless radio telecommunications system comprised of
the Microcell or Repeater (as applicable), the Electronics, the DAS, any related transmission facilities and related
equipment and cabling that will be installed for use on the Premises, as set forth in the System design attached
hereto as Exhibit A and incorporated herein by this reference.
2. System Design and Operation.
2.1 Installation and Maintenance.
2.1.1 Installation. AT&T or its subcontractor will install the System on the Premises.
Customer will not pay an installation fee for installation of and right to use the System (the "Installation").
2.1.2 Maintenance. AT&T or its subcontractor will maintain the System on the
Premises at AT&T's expense.
AT&T and Customer Confidential Information
Page 2 of 8
ISE Agreement (Standalone) 110508
2.2 System Modification and Capacity. Customer understands and agrees that the
System impacts AT&T's Network capacity and performance, and that the System may not provide coverage for
the entire Premises. Customer also understands and agrees that (a) AT&T may, in its sole discretion, modify,
enhance, upgrade, adjust, shutdown, disable or make other changes it deems necessary to the System or any
component thereof, and (b) any such modifications, enhancements, upgrades, adjustments or other changes to
the System or its components by AT&T may require additional space and consume additional power. Any
Customer request to expand, modify, or otherwise enhance the System will be at Customer's expense and will
be subject to AT&T's written approval.
2.3 System Outage. AT&T WILL HAVE NO LIABILITY FOR LOSSES OR DAMAGES OF
ANY KIND CAUSED BY PLANNED OR UNPLANNED OUTAGES OF THE SYSTEM, WHETHER CAUSED BY,
BUT NOT LIMITED TO, FAILURES OF THE SYSTEM OR ANY COMPONENT THEREOF, POWER FAILURES,
CUSTOMER'S ACTS OR OMISSIONS, OR ANY OUTAGE ASSOCIATED WITH COMPLIANCE WITH ANY
EXISTING OR YET TO BE ENACTED LAW, BUILDING CODE REQUIREMENT, OR WITH ANY OTHER
REGULATORY MANDATE.
2.4 Ownership. FCC regulations require AT&T to maintain sole control over any
transmitting device that operates within AT&T's assigned Frequencies. The parties agree that: (a) Customer
does not have, and will not acquire through this Agreement, any proprietary or ownership rights or interest in the
System, AT&T's Network, AT&T's cell sites and related components, or the Frequencies, or the public revenues
associated with the Service or the System, and (b) the System, and all components, are and will remain the
property of AT&T and AT&T or its subcontractor will have the right to install, operate, maintain and remove the
System in its sole discretion at AT&T's expense. AT&T has no proprietary or ownership rights in the Premises or
Customer's facilities, including Customer cabling, used as part of the System installation.
2.5 Connectivity.
2.5.1 Microcell-Enabled System. If the System includes a Microcell, (a) Customer
understands and agrees that the Microcell may require connectivity to the Network via telephone company
transport facilities such as a T-1 connection, and (b) AT&T will provide such connectivity at AT&T's expense.
2.5.2 Repeater -Enabled System. If the System includes a Repeater, Customer (a)
understands and agrees that the Repeater may require connectivity to the Network via an analog telephone line
connecting to a modem and (b) will supply such analog telephone line at Customer's expense.
2.6 Customer Responsibilities. Customer represents, warrants and agrees that it: (a) will
obtain all required Premises approvals to allow AT&T or its subcontractors to install, maintain, repair, replace,
remove and/or operate the System on the Premises prior to installation, (b) will provide to AT&T, at no charge or
cost to AT&T, space in and on the Premises that is sufficient, climate controlled, and in such a condition, that will
allow AT&T or its subcontractors to install, repair, maintain, replace, remove and/or operate the System, (c) will
make available to AT&T or its subcontractors, on a twenty-four (24) hours per day, seven (7) days per week
basis, an authorized Customer representative to notify for gaining access to the System and, upon AT&T's
reasonable prior notice to such representative, will provide AT&T or its subcontractors with access to the System
twenty-four (24) hours per day, seven (7) days per week to complete any necessary installation, maintenance,
repair, replacement or removal of the System, (d) will ensure that all installation, modification, handling,
maintenance, repair and removal of the System is restricted solely to AT&T and its subcontractors, (e) after
System installation, will not change its Premises or its use of the Premises in any way that interferes with the
System or AT&T's Network, (f) will provide to the System, at Customer's sole cost, all required commercial
power, (g) will be solely responsible for all costs to repair the System from damage caused by Customer's acts or
omissions, and (h) will be solely responsible for all costs associated with moving the System on the Premises or
to a new location, if such move is done at Customer's request, subject to AT&T's written approval.
AT&T and Customer Confidential Information
Page 3 of 8
ISE Agreement (Standalone) l 10508
2.7 AT&T System Access. When accessing the Premises to complete any necessary
installation, maintenance, repair, replacement or removal of the System, AT&T may be subject to Customer's
reasonable security procedures and protocol. Any planned maintenance shall occur with reasonable prior notice
to Customer at a mutually agreed upon time.
3. Monitoring/Unauthorized Usage.
3.1 Monitoring for Interference. AT&T has the right to monitor the operation of the
System twenty-four hours per day, seven days per week, in order to determine System performance and to
ensure that the System does not cause Interference to other AT&T customers or their users, AT&T's Network,
transmission facilities or other equipment. AT&T will determine whether the System is causing such
Interference, and may, at its option, disable or shut down the System until AT&T is able to determine and
eliminate the cause of the Interference.
3.2 Unauthorized Usage. Customer shall not use any part of the System to broadcast
AT&T's Frequencies without AT&T's consent.
4. Term. This Agreement shall begin on the Effective Date and continue for 3 (three) years (the
"Initial Term"). After the Initial Term, this Agreement will automatically renew for additional, successive one (1)
year periods (each, a "Renewal Term") until terminated by either party upon ninety (90) days' written notice.
Termination and Equipment Removal.
5.1 Termination.
5.1.1 Due to Breach. If either party fails to perform or observe (or to commence and
diligently prosecute activities that will result in performance or observance of) any material term or condition of
this Agreement within thirty (30) days after receipt of written notice from the other party of such failure, that party
shall be in default and the non -breaching party may, in addition to any other remedies available at law or in
equity, terminate this Agreement.
5.1.2 Due to Bankruptcy. Either party may terminate this Agreement should the
other party make a general assignment for the benefit of its creditors, if a receiver is appointed for the other party
due to its insolvency, if the other party initiates a voluntary bankruptcy proceeding or if the other party's creditors
initiate a bankruptcy proceeding against that party and such proceeding is continuing and not dismissed or
discharged for sixty (60) days.
5.1.3 Due to Regulatory Change. AT&T may terminate this Agreement, or any part
of this Agreement, immediately and without penalty, upon written notice to Customer if the FCC, the respective
State Public Utilities Commission or any other regulatory agency or legislative body promulgates any rule,
regulation or order that in effect or application prohibits or adversely affects AT&T's ability to fulfill its obligations
hereunder.
5.1.4 Due to Interference. In the event AT&T is unable to eliminate the cause of any
Interference identified pursuant to Section 3.1 above (whether because the cause cannot be determined or is
determined to be Customer or Customer's use of the Premises), AT&T will have the right to permanently shut
down and remove the System and terminate this Agreement immediately and without penalty.
5.1.5 Due to Vacancy. Customer must notify AT&T of its intent to vacate the
Premises, and thereby terminate this Agreement, at least sixty (60) days prior to such move. AT&T will have the
right to access the Premises and remove all AT&T -owned equipment prior to Customer's move.
5.2 Equipment Removal Fee. Customer will pay to AT&T the applicable Equipment
Removal Fee set forth below upon (a) AT&T's termination of this Agreement pursuant to Sections 5.1.1 or 5.1.2
above; (b) AT&T's termination of this Agreement pursuant to Section 5.1.4 above but only where AT&T
AT&T and Customer Confidential Information
Page 4 of 8
ISE Agreement (Standalone) 110508
determines that the Interference is caused, in whole or in part, by Customer or its use of the Premises; or (c)
upon Customer's termination of the Agreement pursuant to Section 5.1.5 above.
E ui ment Removal Fee
System Type
During 1 s year of
During 2" year of
During remainder
Initial Term
Initial Term
of Initial Term
and any Renewal
Term
Microcell-enabled
$N/A
$N/A
$N/A
Repeater -enabled t
$3,000
$2,000
$0
5.3 Equipment Removal. Upon termination of this Agreement for any reason, AT&T will
have the right, upon reasonable notice to Customer, to enter Customer's Premises and remove all AT&T -owned
equipment.
6. No Warranty. AT&T MAKES NO EXPRESS WARRANTY REGARDING THE SYSTEM, ITS
COMPONENTS OR OTHER EQUIPMENT AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATIONS OF LIABILITY.
7.1 PRODUCT AND SERVICE FAILURES. AT&T IS NOT LIABLE FOR ANY LOSSES OR
DAMAGES THAT ARISE OUT OF OR IN CONNECTION WITH THE EQUIPMENT OR SERVICES TO BE
PROVIDED UNDER THIS AGREEMENT, WHETHER THE CLAIM IS IN TORT OR OTHERWISE, INCLUDING
BUT NOT LIMITED TO INJURIES TO PERSONS OR PROPERTY ARISING FROM THE OTHER PARTY'S
USE OF THE SYSTEM.
7.2 CONSEQUENTIAL DAMAGES. NEITHER PARTY IS LIABLE FOR ANY SPECIAL,
PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS.
8. Indemnification. AT&T and Customer agree to indemnify, defend and hold harmless the other
party and its parent company, affiliates, employees, directors, officers, and agents from and against all claims,
demands, actions, causes of actions, damages, liabilities, losses, and expenses (including reasonable attorney's
fees) incurred as a result of third party claims for damage to property and/or personal injuries (including death)
arising out of the negligent or willful act or omission of the indemnifying party. The following procedures will
apply to any indemnification obligation under this Section 8: (a) the party seeking indemnification will promptly
notify the indemnifying party in writing of any claim or suit; (b) the indemnifying party will have sole control of the
defense or settlement; provided, however, that the indemnifying parry will not enter into any settlement that
obligates the party seeking indemnification to make an admission of guilt, or incur any expense for which the
party seeking indemnification is not indemnified, without such party's prior written consent, which will not be
unreasonably withheld; (c) the party seeking indemnification will have the right to be represented separately by
counsel of its own choosing, at its own expense, in connection with any claim or suit; and (d) the party seeking
indemnification will provide reasonable cooperation to the indemnifying party at the indemnifying party's
expense. The Customer is a state agency subject to limited liability under §768.28, Florida Statutes, and does
not waive immunity in excess of that limit.
9. Force Majeure. AT&T shall have no liability for damages or delays due to fire, explosion,
lightning, pest damage, power surge or failures, water, acts of God, the elements, war, civil disturbances, acts of
civil or military authorities or the public enemy, inability to secure raw materials, products, or transportation
facilities, fuel or energy shortages, acts or omissions of other communications carriers, suppliers or
subcontractors, or other causes beyond AT&T's control, whether or not similar to the foregoing.
AT&T and Customer Confidential Information
Page 5 of 8
ISE Agreement (Standalone) 110508
10. Notices. All notices and other communications required or permitted under this Agreement shall
be in writing and shall be deemed to have been duly made and received when personally served or when mailed
by overnight delivery service or certified mail, postage prepaid, return receipt requested, to the addresses
indicated below. The parties may change the addresses on thirty (30) days' written notice.
If to AT&T: AT&T Mobility National Accounts LLC
P.O. Box 97061
Redmond, WA 98052
Attn: EBS Mobility Contract Management
If to Customer: County Administrator
1100 Simonton St
Key West, FL 33040
Attn: Technical Services
11. Governing Law. The laws of the State of Florida shall govern all questions with respect to this
Agreement. The prevailing party in any dispute to enforce or interpret this Agreement shall be entitled to recover
its reasonable costs and attorneys' fees.
12. Compliance with Law. In carrying out AT&T's obligations under this agreement, AT&T
shall abide by all statutes, ordinances, rules and regulations pertaining to or regulating the provisions of this
Agreement, including those now in effect and hereafter adopted. Any violation of said statutes, ordinances, rules
or regulations shall constitute a material breach of this Agreement and shall entitle Customer to terminate this
Agreement pursuant to Section 5.1.1 of this Agreement.
13. Assignment. This Agreement may not be assigned by either party without the prior written
consent of the other and such consent shall not be unreasonably withheld. However, either party may, without
the other party's consent, assign this Agreement to an affiliate or to any entity that acquires substantially all of
the party's business or stock and AT&T may assign its right to receive payments hereunder. Subject to the
foregoing, this Agreement shall be binding upon the assignees of the respective parties.
14. 'Third Party Beneficiaries. Other than as expressly set forth herein, this Agreement shall not
be deemed to provide any third parties with any remedy, claim, right of action, or other right.
15. Severability. If any portion of this Agreement is found to be unenforceable, the remaining
portions shall remain in effect and the parties will begin negotiations for a replacement of the invalid or
unenforceable portion.
16. Survival. The terms and provisions of this Agreement that by their nature require performance
by either party after the termination or expiration of this Agreement, including, but not limited to, limitations of
liability and exclusions of damages, shall be and remain enforceable notwithstanding such termination or
expiration of this Agreement for any reason whatsoever.
17. Legal Relationship. This Agreement does not render either party the agent or legal
representative of the other party and does not create a partnership or joint venture between AT&T and
Customer. Neither party shall have any authority to agree for or bind the other party in any manner whatsoever.
18. Waiver. No waiver of any of the provisions of this Agreement shall be binding unless it is in
writing and signed by both parties. The failure of either party to insist on the strict enforcement of any provision
of this Agreement: shall not constitute a waiver of any provision.
AT&T and Customer Confidential Information
Page 6 of 8
ISE Agreement (Standalone) 110508
19. Publicity. Neither party shall issue a news release, public announcement, advertisement, or
other form of publicity concerning the substance of this Agreement without obtaining the prior written approval of
the other party, which may be withheld in the other party's sole discretion.
20. Entire Agreement. This Agreement set forth the entire agreement between the parties with
respect to the subject matter herein and supersedes all prior agreements, proposals, representations,
statements, or understandings, whether written or oral. No change, modification or waiver of any of the terms of
this Agreement shall be binding unless made in writing signed by both parties.
AT&T Mobility National Accounts LLC
By (2117
Printed Name_ ?A(AP4 SA*Ns.
Title DI I* cal ,, qw-r z
Date �2A/a
V
Monroe County Board of County
Commissioners
By
Printed Name S�,ti V
Title 1 o� C
Date q - I
�
T,
._0 AS TO M.
crs
, S I,IJ MIN
c..0
o
c�
•=
o
r-Y
C-q
�
a
AT&T and Customer Confidential Information
Page 7 of 8
ISE Agreement (Standalone) 110508
Exhibit A
System Design
AT&T and Customer Confidential Information
Page 8 of 8
ISE Agreement (Standalone) 110508
§�$
|
O.Lmo
n
min
■
|
ƒ��
oe
k / m
& e2
o 4>
— co
f
02)
�
3 ®»
|
)\ƒ
2
r
\)
°R2
k§\
$2@7
$0Ĩ
ƒ2g�
..
&
§�0
k
ƒ
\(0
\7
§
f
�
7
\
}
}
_
O
g
\
�
�
Co §
^
ILL
\
\ \
k
\
ƒƒ
/
/ §
9
3
�o
\
\
\
$
\
\
CL
2
2 \
|
|
(
\ \
F./ fi/6/ T A