05/22/1996 USE AND LEASE AGREEMENT
BETWEEN
MONROE COUNTY
AND
PrimeCo Personal Communications, L.P.
This USE AND LEASE AGREEMENT entered into this day of
, 1996, by and between MONROE COUNTY, a political subdivision
of the State of Florida, whose address is County of Monroe, Key
West, Florida 330410, (hereinafter referred to as "COUNTY "), and
PrimeCo Personal Communications, L.P., a Delaware limited
partnership, whose address is 777 Yamato Road, Suite 600, Boca
Raton, Florida 33431, (hereinafter referred to as "PrimeCo ").
Whereas, COUNTY is the owner and possessor of certain tracts
of real property located in Key Largo, Stock Island, Grassy Key,
West Summerland and Islamorada, County of Monroe, State of Florida
(hereinafter referred to collectively as "COUNTY's Property "). The
location of each respective tract is shown on Exhibit "A ", attached
hereto and made a part hereof; and
Whereas, COUNTY currently has communication tower structures
(hereinafter referred to as "existing towers ") and various
equipment buildings located and erected on COUNTY's Property; and
Whereas, pursuant to this Agreement, the existing tower
structures shall be dismantled and entirely replaced by PrimeCo
with a replacement tower structure (said replacement tower is
hereinafter referred to as the "Tower ") as follows:
(i) Key Largo -- 350' guyed tower to be replaced by
a 350' self supporting tower.
(ii) Islamorada -- 270' guyed tower to be replaced
by a 325' self supporting tower.
(iii) Grassy Key -- 250' guyed Tower to be replaced
by a 270' self supporting tower.
(iv) West Summerland -- 350' guyed tower to be
replaced by a 370' self supporting tower.
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(v) Stock Island -- A new 150' self supporting
tower shall be constructed; and
Whereas, in response to a "Request for Proposal" advertised by
Monroe County it was concluded tha these facilities could be shared
by those entities who responded to that Request, specifically PCS
PrimeCo, Keys Microcable, AT &T Wireless and BellSouth Mobility,
hereinafter referred to collectively as "Joint Participation
Users "); and
Whereas, PrimeCo desires to lease a designated portion of
COUNTY's Property (hereinafter called "leased property "), with a
right of way for access thereto and certain positions on each
respective Tower (hereinafter referred to as "Tower Space" and
collectively referred to as "Property ", to place a prefabricated
communications equipment building at the base of the Tower and to
mount upon the Tower its various communications antennas;
• NOW, THEREFORE, in consideration of the foregoing, the mutual
terms, covenants and conditions contained herein and other good and
valuable consideration, the receipt of which is hereby acknowledged
from one party to the other, the undersigned parties acknowledge
and agree as follows:
1. The foregoing recitations are true and correct and are hereby
incorporated herein by reference.
2. REPLACEMENT OF EXISTING TOWERS AND CONSTRUCTION OF TOWER SITE.
A. Both COUNTY and PrimeCo acknowledge and agree that the
Towers, and associated equipment, shall be located as close as
feasible to the existing tower, maintaining standard engineering
practices , to accommodate both COUNTY and PrimeCo's communication
uses as specified herein. COUNTY hereby grants PrimeCo the
nonexclusive right for ingress and egress to COUNTY's Property and
parking area seven (7) days a week, twenty -four (24) hours a day,
for the construction and installation of the Towers and Tower
Sites. For the purposes of this Agreement, the Tower Sites shall be
defined to mean the area consisting of each Tower, the unmanned
communications equipment building(s), the parking area, and the
perimeter fence around such area. In the event any public utility
shall require any utility easements, COUNTY agrees to cooperate, in
a timely manner, with PrimeCo in PrimeCo's efforts to obtain
utility services to the Towers, at no cost to PrimeCo.
B. At no cost to COUNTY, PrimeCo shall construct new self -
supporting tower structures at each Tower Site, and; construct a
cyclone security fence with one inch razor wire to be placed around
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the perimeter of the Tower Site, all as are more specifically
described in Exhibit "A ", attached hereto and made a part hereof.
PrimeCo shall be responsible for the cost of the Towers and the
security fencing.
C. Pursuant to the attached Exhibit "T ", COUNTY has provided
PrimeCo with an exact description of all antennas, equipment and
heights required for the installation for current and future
communication needs by COUNTY. Upon the completion of each Tower,
PrimeCo agrees, in cooperation with COUNTY, to remove COUNTY's
antennas and related equipment (including cabling) from each
existing tower and re- install those antennas and related equipment
on the new Tower(s), at PrimeCo's expense. Both COUNTY and PrimeCo
agree to cooperate to endeavor to minimize any impact on COUNTY's
essential communication service requirements. Thereafter, the cost
of said antennas and equipment and maintenance thereof shall be
COUNTY's sole responsibility. COUNTY acknowledges and agrees that
PrimeCo is not guaranteeing nor warrantying the condition or
integrity of the existing antennas or related equipment nor shall
. PrimeCo be responsible for any breakage that may occur during this
process. If COUNTY should elect to replace any of its existing
antennas or related equipment prior to the reinstallation by
PrimeCo, the cost of the new antennas and equipment shall be at
COUNTY' expense.
D. Both COUNTY and PrimeCo acknowledge that, pursuant to
separate agreements between the COUNTY and the Joint Participation
Users, it is their intent to provide for the construction of
unmanned equipment building(s) at each Tower Site for use by the
Joint Participation Users. If for any reason such separate
agreement is not secured for each Tower Site, COUNTY agrees that
PrimeCo shall have the right to construct unmanned equipment
building(s) suitable for its purposes at each Tower Site for its
telecommunications equipment and ownership any such building shall
be transferred to the COUNTY upon the termination of PrimeCo's
lease of that Tower Site in the same manner as provided in
paragraph 2.E. It is anticipated that each Joint Participation
User shall, pursuant to a separate agreement between them, have the
right to utilize a portion of any such equipment building, subject
to its respective pro rata share of any expense for such right.
PrimeCo agrees to furnish to each of the equipment buildings
electric service sufficient for the operation of the anticipated
communications equipment. All Utilities, including electrical
service, for each building shall be separately metered and each
party shall be solely liable for its utility expenses relating to
its respective installation and equipment. If COUNTY or any Joint
Participant should install any emergency generators at a Tower
Site, said generator(s) shall be available to all other Joint
Participants. The anticipated building space for each Joint
participation User for each site is set forth in the attached
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Exhibit "C ".
E. PrimeCo shall prepare, at its expense, in joint
participation with COUNTY, all necessary drawings and plans, which
COUNTY shall have the right to approve, in its reasonable
discretion, and COUNTY agrees to make and file all required
applications with the appropriate zoning authority to secure the
proper zoning and /or site planning of the Towers, the Tower Sites
and COUNTY's Property as may be required for the use intended by
the COUNTY, PrimeCo and any Joint Participation User. COUNTY shall
have been deemed to have approved the drawings if COUNTY has not
given written notice of its approval or disapproval to PrimeCo
within ten (10) business days of COUNTY's receipt of such drawings.
COUNTY will be responsible for any local filing or permit fee
expenses that may be associated with the local building, zoning
and /or site plan procedure. PrimeCo shall have the right to file
any applications for certificates, permits and other approvals that
may be required by any federal, state or local authorities.
PrimeCo shall prepare and COUNTY agrees to make and file in joint
. participation with PrimeCo, all required applications with the
Federal Aviation Administration (hereinafter referred to as the
"FAA ") and secure all required FAA approvals. Both PrimeCo and
COUNTY agree to cooperate, in a timely manner, with each other in
their efforts to obtain such approvals with the appropriate
authorities. COUNTY shall provide a Construction Manager to
coordinate and obtain the necessary and required permits. It is
anticipated that the COUNTY's Construction Manager will assist
PrimeCo's Project Manager to expedite the completion of this
project. PrimeCo agrees to be responsible for those construction
costs generally associated with the project as contemplated herein,
such as surveys, tests, engineering drawings or other expenditures
reasonably considered necessary to this project; notwithstanding,
PrimeCo reserves the right, in its sole discretion, to refuse to
pay any such expense or complete a condition of approval that it
deems to be unjust or unreasonably expensive under the
circumstances.
F. It is understood and agreed that PrimeCo's obligations
hereunder, and its lease of COUNTY's Property as provided herein,
are contingent upon the COUNTY and PrimeCo obtaining, after the
execution date of this Agreement, all of the certificates, permits
and other approvals that may be required by any federal, state or
local authorities for the construction of the Towers, the Tower
Sites and the equipment buildings and are further contingent upon
PrimeCo not exercising its right of termination pursuant to
paragraph 15, herein. Construction shall not commence until such
time as each identified Tower Site has been approved and formally
permitted for construction.
G. COUNTY shall permit PrimeCo free ingress and egress to
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COUNTY's Property to conduct surveys, structural strength analysis,
radio propagation tests, an inter modulation study to verify the
compatibility of COUNTY's and PrimeCo's equipment, and other
activities of a similar nature, as PrimeCo may deem necessary, at
the sole cost of PrimeCo. PrimeCo agrees to repair any damage
caused by its activities and agrees that said activities will be
conducted in a manner that will not permanently damage COUNTY's
Property. In addition, PrimeCo is hereby granted the right to
enter upon COUNTY's Property for the purposes of a) making subsoil
tests in the form of test borings and test pits of reasonable size
and in required locations, and; b) satisfying itself that any
environmental hazardous material is not present on COUNTY's
Property or in any improvements thereto. COUNTY shall provide and
make available to PrimeCo, within ten (10) days of the effective
date of this Agreement, copies of any and all past environmental
audits, including but not limited to, soil and ground water reports
and asbestos material surveys applicable to COUNTY's Property.
COUNTY shall advise PrimeCo in writing, to the best of the COUNTY's
knowledge, if the property or any adjacent property has ever been
. used in the past for a gasoline station, dry cleaner, photo
development, or any other type of business normally using various
types of hazardous materials.
H. PrimeCo, at its sole cost and expense, shall cause the
approved Tower, equipment buildings and Tower Site work to be done
and completed in a good, substantial and workmanlike manner, and in
compliance with all legal requirements. PrimeCo shall be solely
responsible for construction means, methods, techniques, sequences
and procedures, and for coordinating all activities related to the
work. COUNTY shall have no duty or obligation to inspect the work,
but shall have the absolute right to do so and shall have the right
to determine, in its sole reasonable discretion and at its expense,
that the construction has been performed in accordance with the
approved drawings and has been performed in the manner required by
this paragraph 2.
I. After completion of the Towers and Tower Sites and upon
approval of the work and verification by COUNTY that the Towers are
satisfactorily operational, PrimeCo shall within a reasonable time
thereafter, at its expense, dismantle the COUNTY's existing towers
for COUNTY's disposition. It is agreed that COUNTY may retain any
salvage fee that may be recouped for these existing items.
Ownership of the Towers shall be transferred to COUNTY by such
instrument of conveyance as is more specifically described in
Exhibit "Q ", attached hereto and make a part hereof, and title
shall remain thereafter with COUNTY.
3. USE OF TOWERS BY COUNTY. A. COUNTY shall locate on the
Towers its governmental communication antennas and equipment for
public purposes. Such antennas and equipment shall be mounted at an
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elevation and with such equipment and related cables satisfactory
to COUNTY. An exact description of all antennas, equipment and
height for the installation for current and future uses anticipated
by COUNTY is more specifically described in Exhibit "T" attached
hereto and made a part hereof.
B. It is acknowledged and understood that certain other
governmental entities have heretofore contracted with COUNTY for
the placement of their governmental communications antennas and
related equipment on the existing towers. COUNTY may allocate any
of its reserved Tower space and loading capacity subject to the
terms and conditions contained in this Agreement by permitting
those governmental entities to locate upon specifically designated
portions on the Towers their respective antennas for governmental
radio communication purposes. An exact description of all antennas,
equipment and height for the installation for current and future
use anticipated by those other governmental users has been
incorporated in COUNTY's antenna and equipment list as described in
Exhibit "T ". Further, COUNTY agrees not to directly permit, lease
. or rent any additional Tower space to any other governmental
entities beyond that tower loading capacity already reserved to
COUNTY pursuant to this Agreement. COUNTY agrees to assure PrimeCo
that those other governmental entities will not cause any
unreasonable interference to PrimeCo's communication antennas and
communications signals. Should those other entities unreasonably
interfere with PrimeCo's communications system, COUNTY agrees to
correct such identified interference as expeditiously as possible.
If for any reason, the COUNTY should elect to abandon any of its
reserved tower loading capacity, COUNTY agrees to offer such space
and capacity to PrimeCo pursuant to the terms of this Agreement.
C. In order to protect the integrity of the Tower, COUNTY
agrees to act as the Tower Administer to assure that any subsequent
installation and /or maintenance performed on the Towers by COUNTY
or any other Joint Participation User, shall be done in a workman-
like manner consistent with high quality construction standards.
Prior to the commencement of any installation or maintenance work
by any such other Joint Participation User, that User shall submit
detailed plans of the work to be performed to COUNTY for its
approval and COUNTY shall have the option to approve the
contemplated contractor prior to the commencement of any
installation or maintenance. PrimeCo agrees provide COUNTY with at
least forty -eight (48) hours notice prior to any installation
and /or maintenance that will require access to the Tower, unless an
emergency shall exist in which case notice shall be provided to
COUNTY at least twenty -four (24) hours after access to the Tower
has occurred.
D. It is the intent of both COUNTY and PrimeCo that the
designed Tower capacity and Tower loading for each Tower be
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reserved to accommodate the antennas and equipment of the COUNTY,
PrimeCo and any other approved Joint Participant User, and COUNTY
agrees to cooperate in good faith to reserve, protect and carry out
such intent. In the event that the COUNTY desires to modify its
proposed antennas and related equipment as identified in Exhibit
"T ", COUNTY may, with prior notice and an offer of first refusal to
PrimeCo, reduce its reserved Tower loading and Tower capacity
accordingly. Any necessary Tower studies shall be conducted at
PrimeCo's expense.
E. To the extent permitted by law, COUNTY shall indemnify
and hold harmless PrimeCo against and from any and all claims,
demands, actions, losses, damages, orders, judgments and any and
all costs and expenses (including without limitation attorneys fees
and costs of litigation), resulting from or incurred by PrimeCo on
account of or arising from COUNTY's use or any Joint Participation
User's use of the Towers or COUNTY's Property, or from any other
activity permitted or caused by COUNTY or any such third party's
use in or about the Tower Sites. COUNTY upon notice from PrimeCo,
. shall resist and defend at COUNTY's expense any such actions or
proceedings by counsel reasonably satisfactory to PrimeCo. This
indemnity shall not apply to any claims arising from any negligent
or intentional misconduct of the indemnified party.
4. INTERFERENCE. A) PrimeCo agrees to install communications
equipment of a type and frequency which will not cause interference
with current communications at the time of such installation and
during the term of this Agreement. In the event PrimeCo's
equipment causes interference, PrimeCo will take all steps
necessary to correct and eliminate such interference at its sole
cost. COUNTY agrees not to allow any future use of a Tower, a
Tower Site, or addition and /or modification to any current use of
a Tower, a Tower Site or COUNTY's Property that may cause
interference with or cause the improper operation of PrimeCo's
equipment. PrimeCo acknowledges that, pursuant to the current
agreement between the other Joint Participant Users and the COUNTY,
the placement of communications equipment on the Towers or the
Tower Sites by COUNTY and any such Joint Participation Users are
not a violation of any restriction contained herein; however, all
such entities shall be subject to the terms and conditions of this
Agreement and any additional third parties shall not be permitted
by COUNTY to use or locate their equipment on the Tower. Further
COUNTY agrees to enforce the terms of this Agreement as applicable
to any such Joint Participant User and agrees not to permit the
assignment and /or subleasing of the Towers or Tower Sites without
obtaining prior written approval by PrimeCo.
B) In the event interference is encountered by either party,
both COUNTY and PrimeCo agree to exercise their best efforts to
properly and diligently resolve such problems after notice of any
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such interference. COUNTY agrees not to modify any current use or
allow any future use of the Towers that knowingly will cause
interference with or cause the improper operation of PrimeCo's
equipment.
C) COUNTY agrees, as Tower manager, to protect the Joint
Participation Users from unacceptable interference, by adopting a
common interference policy as more fully described in Exhibit "I ",
attached hereto and made a part hereof.
THE LEASE.
5. A) COUNTY hereby leases to PrimeCo a portion of COUNTY's
Property located at Key Largo, Stock Island, Grassy Key, West
Summerland and Islamorada, Monroe County, Florida (the leased
property) containing suitable building space and tower space to
the extent necessary to enable PrimeCo to erect, maintain and
operate its communications system, together with a grant of non-
• exclusive easement for unrestricted rights of access thereto and to
the appropriate, in the discretion of PrimeCo, a source of electric'
and telephone facilities. The building space, and tower space for
each of the Towers and various leased parcels are more particularly
described on Exhibit "E ", attached hereto and made a part hereof.
6. TERM. This Agreement shall be for an initial term of ten
(10) years beginning on the date PrimeCo places its communications
equipment in service at the Towers (the "Commencement Date ").
Notwithstanding the above, if construction of the Towers have not
commenced by March 1, 1997, PrimeCo may, at its discretion, elect
to terminate this Agreement by providing COUNTY with thirty (30)
days prior written notice.
7. RENT. In consideration of PrimeCo constructing the various
Towers, and Tower Sites, at no expense to COUNTY, and permitting
COUNTY to utilize the Tower at no expense, COUNTY shall be paid for
this initial 10 year term an annual rental of Ten and No /100
Dollars ($10.00). The entire rental amount for the initial ten year
term shall be paid to COUNTY in one lump sum within 30 days of the
commencement of this initial term.
8. EXTENSION. Subject to the same rental terms as contained
above, an extension of the initial term of this Agreement is
granted to PrimeCo for four (4) additional five (5) year extension
periods, and such extensions shall automatically occur providing
PrimeCo is not in default of this Agreement or unless PrimeCo gives
COUNTY written notice of its intention not to extend this Agreement
at least six (6) months prior to the end of the current term. If
at the end of the fourth (4th) five (5) year extension term this
Agreement has not been terminated by either party by giving to the
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other written notice of its intention to terminate at least six (6)
months prior to the end of such term, this Agreement shall continue
in force upon the same covenants, terms and conditions for a
further term of one (1) year, and for annual terms thereafter until
terminated by either party by giving to the other written notice of
its intention to so terminate at least six (6) months prior to the
end of such term.
9. USE. A) Use of the Tower Sites by PrimeCo shall be for the
purpose of installing, removing, replacing maintaining and
operating, at its sole expense, a communications facility. An exact
description of all antennas, equipment and height for the
installation for current and future uses anticipated by PrimeCo is
more specifically described in Exhibit "T" attached hereto and made
a part hereof. In addition, it is acknowledged and agreed by both
COUNTY and PrimeCo that the Towers has been designed by PrimeCo to
accommodate the equipment specified on Exhibit "T" and it is hereby
acknowledged and agreed that PrimeCo has reserved the necessary
Tower Space and Tower capacity for this purpose.
B) The cost of said equipment, its installation and
maintenance thereof shall be PrimeCo's sole responsibility. Said
installation and maintenance are to be performed by PrimeCo, or its
contractors, in a workmanlike manner. Prior to the commencement of
any substantial installation work at a Tower Site, PrimeCo shall
submit detailed plans of the work to be performed to COUNTY for its
prior approval (which shall not be arbitrary or unreasonably
delayed).
C) If for any reason, additional tower or loading capacity
should become available, COUNTY does hereby agree, subject to prior
written approval, which approval shall not be unreasonably
withheld, grant PrimeCo the option to locate in the future
additional communication antennas or microwave dishes for the
purpose of telecommunications on the Towers and the ability to
modify or relocate its above described antennas on the Towers,
provided PrimeCo 1) notifies COUNTY of such scheduled modification
or addition; 2) PrimeCo's antennas do not conflict with COUNTY's
antennas and equipment identified in the attached Exhibit "T "; and
3) the structural capacity of the Tower, whether existing or
modified by PrimeCo, is sufficient based on standard and accepted
engineering practices.
D) Subject to COUNTY's prior written approval, PrimeCo may
make such alterations to said Towers and Tower Sites as are
necessary for PrimeCo's construction and maintenance of PrimeCo's
equipment and facilities as contemplated herein. Said alterations,
furthermore, are to be performed in a workmanlike manner and done
so that no mechanics', laborers' or materialmen's liens will be
filed against the COUNTY's Property at any time during the term of
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this Agreement.
10. MAINTENANCE. A) By PrimeCo: PrimeCo shall maintain in a good
state of repair and in good operating condition its antennas and
transmitting and other equipment, all in accordance with good
engineering practices and applicable governmental rules and
regulations. In the event inspection, maintenance or repairs to
PrimeCo's antennas and equipment are required, PrimeCo shall use
qualified technicians or contractors to make necessary ascents and
descents onto the Towers. PrimeCo shall maintain in a good state
of repair and in good reasonable condition its equipment, building
space, and other equipment, all in accordance with good engineering
practices and applicable governmental rules and regulations.
PrimeCo will make, at its expense, all necessary repairs and
maintenance, as well as alterations required by in and to its
equipment, building space(s) and Tower Space(s).
B) By COUNTY: COUNTY will make at its expense all necessary
repairs and replacements, as well as alterations required by any
. governmental authority having jurisdiction in and to the Towers,
unless the required repairs, replacements, or alterations are
solely required for PrimeCo's communication equipment located on
the Towers and if so, PrimeCo shall make, at its expense, all
necessary repairs, replacements, and alterations as required.
COUNTY shall maintain in a good state of repair and in good
reasonable condition its building space, its antennas and
transmitting and other equipment, all in accordance with good
engineering practices and applicable governmental rules and
regulations.
C) The Tower: COUNTY shall be responsible for the cost of
any required maintenance to the Towers, Tower Sites and COUNTY
Property. Said maintenance is to be performed by COUNTY, or its
contractors, in a workmanlike manner. In order to protect the
integrity of the Towers both PrimeCo and COUNTY agree that any
installation and /or maintenance performed on the Towers shall be
done in a workmanlike manner. Both COUNTY and PrimeCo agree to
provide the other with at least forty -eight (48) hours notice prior
to any installation and /or maintenance that will require access to
the Towers, unless an emergency shall exist in which case notice
shall be provided to the other at least twenty -four (24) hours
after access to the structure has occurred. Should COUNTY fail to
properly maintain the Towers in a reasonably safe condition, or if
the COUNTY should be cited by a governmental authority with
jurisdiction over the Towers, including the FCC or FAA because the
Towers are not in regulatory compliance and the defect is not cured
within the time frame allowed by the citing agency, PrimeCo, in its
sole discretion, may, but is under no obligation to, cure the
defect.
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11. PERSONAL PROPERTY. Personal property and fixtures of PrimeCo
shall be removed by PrimeCo upon expiration or termination of this
Agreement, unless otherwise provided for herein. Notwithstanding
the above, PrimeCo agrees not to remove any of its equipment that
would unreasonably affect the operations of any other Joint
Participant User.
12. TOWER CAPACITY. It is the intent of both COUNTY and
PrimeCo that the designed Tower(s) capacity and Tower(s) loading be
reserved to accommodate the antennas and equipment of the COUNTY,
PrimeCo, and any other approved Joint Participant User, and both
agree to cooperate in good faith to reserve, protect and carry out
such intent.
A) In the event that the COUNTY determines to provide tower
space to other governmental entities, COUNTY may, modify its
proposed antennas and related equipment as identified in Exhibit
"T" and reduce the Tower(s) loading and Tower(s)capacity
accordingly to permit such interested governmental entities on the
. Tower(s), all at the COUNTY's sole expense including any necessary
Tower studies.
B) In the event that tower loading (whether actual or
proposed) may exceed that provided in Exhibit "T ", attached, COUNTY
agrees to conduct and pay for the cost of all necessary Tower
studies determining feasibility of Tower loading due to COUNTY's
antenna(s) modifications and provide PrimeCo with a copy of any
such study. Should Tower capacity be available to COUNTY (as
specified above) and Tower modification is required, COUNTY shall
cause the Tower work to be done and completed in a good,
substantial and workmanlike manner, in compliance with all legal
requirements and the cost of all such modifications shall be borne
by COUNTY.
13. NOTICES. All notices required pursuant to this Agreement ,
must be in writing and shall be deemed validly given if sent by
certified mail, return receipt requested, addressed as follows (or
any other address that the party to be notified may have designated
to the sender by like notice):
COUNTY: MONROE COUNTY, Florida
c/o Dept. of Emergency Communications
10600 Aviation Blvd.
Marathon, Florida 33301
PrimeCo: PrimeCo Personal Communications, L.P.
777 Yamato Road
Suite 600
Boca Raton, Florida 33431
Attn: Michael Simkin, V.P.
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14. ASSIGNMENT. Assignment of this Agreement by PrimeCo may be
made to its general partner or any subsidiary, any other related
entity or an affiliate of PrimeCo. PrimeCo may, in its discretion,
permit use of all or any portion of the Tower Site(s) by these
other entities consistent with the use by PrimeCo of the Tower
Site(s).
15. TERMINATION. Termination of this Agreement may be exercised
by PrimeCo at any time without further liability if COUNTY cannot
obtain all certificates, permits, licenses or other approvals
(collectively, "approvals ") required from any governmental
authority, and /or any easements required from any third party to
operate the communications facility, or if any such approval is
canceled, expires, lapses, is withdrawn or terminated, or if COUNTY
fails to have proper ownership of COUNTY's Property and /or
authority to enter into this Agreement, or if any other reason,
PrimeCo in its sole discretion, determines that it will be unable
to use the Towers or Tower Sites for its intended purpose prior to
the installation and completion of the Towers, or at anytime
• thereafter. Notice of PrimeCo's exercise of its right to terminate
shall be given to COUNTY in writing by certified mail, return
receipt requested, and shall be effective upon receipt of such
notice by the COUNTY as evidenced by the return receipt. Upon such
termination, this Agreement shall become null and void and all the
parties shall have no further obligations, including the payment of
money, to each other.
16. INDEMNITY. COUNTY, to the extent provided by law, and
PrimeCo each indemnifies the other against and holds the other
harmless from any and all costs (including reasonable attorneys'
fees) and claims of liability or loss which arise out of the use
and /or occupancy of the Tower Sites by such indemnifying party.
This indemnity shall not apply to any claims arising from any
negligent or intentional misconduct of the indemnified party.
17. HAZARDOUS SUBSTANCES. COUNTY represents that it has no
knowledge of any substance, chemical, or waste (collectively,
"substance ") on the COUNTY's Property or Tower Sites that is
identified as hazardous, toxic or dangerous in any applicable
federal, state or local law or regulation. PrimeCo shall not
introduce or use any such substance on the Tower Sites in violation
of any law.
18. TAXES. PrimeCo will be responsible for payment of all
personal property taxes assessed directly upon and arising solely
from its use of the Towers and /or the Tower Sites. COUNTY will be
responsible for payment of all real property taxes; provided,
however, in the event any improvements, excluding the Towers or
Buildings, constructed by PrimeCo on the site are taxed as real
property rather than as personal property, PrimeCo will be
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responsible for payment of the portion of the real estate taxes
attributable to the improvements constructed by PrimeCo. In
addition, PrimeCo shall pay all sales tax due on this commercial
lease as may be required by Florida law.
19. SALE. Should the COUNTY, at any time during the term of
this Agreement, decide to sell all or any part of COUNTY's Property
to a purchaser other than PrimeCo, such sale shall be under and
subject to this Lease Agreement and PrimeCo's rights hereunder.
COUNTY agrees not to sell, lease or use any other areas of County's
Property for placement of other communications facilities or uses
if, in PrimeCo's sole judgment (which shall not be arbitrary), such
installation or use would interfere with the facilities in use by
PrimeCo. COUNTY agrees not to sell, lease, license or use any other
areas of COUNTY's Property upon which the leased property is
situated for placement of other communications facilities if, in
PrimeCo's sole judgment (which shall not be arbitrary), such
installation would interfere with the facilities in use by PrimeCo.
. 20. DESTRUCTION. If the Tower(s) should be totally or
substantially destroyed so that rebuilding the Tower(s) "as is"
would not be economically feasible, as may be reasonably determined
by COUNTY, COUNTY may at its sole discretion, terminate this Lease
or PrimeCo may rebuild the Tower(s), at its expense pursuant to the
terms of this Agreement. If PrimeCo should elect to rebuild the
Tower(s) as provided for in this paragraph 20, then in that case
this Agreement shall re- commence at that point in time as if this
Agreement had just been approved by the parties hereto. COUNTY
agrees that if the Tower(s) should be damaged or substantially
destroyed and the COUNTY has insurance coverage that will apply
upon such an event, the COUNTY will utilize those insurance
proceeds to rebuild the Tower(s). If, however, those proceeds are
insufficient to rebuild the damaged Tower(s), and PrimeCo should
elect to rebuild the Tower(s), the COUNTY will contribute those
insurance proceeds to PrimeCo for the that purpose.
21. INSURANCE. PrimeCo shall maintain, at its sole cost,
during the term of this Agreement commercial general liability
insurance insuring PrimeCo against liability for personal injury,
death or damage to personal property arising out of the use of the
site by PrimeCo, as further evidenced in Exhibit "E ", attached
hereto and made a part hereof. Such insurance shall provide
coverage in an amount not less than $1 million for bodily injury or
death to one or more persons and in an amount of not less than $1
million for property damage. PrimeCo shall provide COUNTY with a
certificate of insurance which evidences such coverages, and shall
name COUNTY as an additional insured.
22. MISCELLANEOUS.
A) PrimeCo shall peaceably and quietly have, hold and enjoy
13
the Towers and Tower Sites. COUNTY shall not cause or permit any
use of the property or the site which interferes with or impairs
the quality of the communications services being rendered by
PrimeCo from the site, nor shall COUNTY have unsupervised access to
PrimeCo equipment.
B) COUNTY represents and warrants that COUNTY has full
authority to enter into and sign this Agreement.
C) This Agreement contains all agreements, promises, and
understandings between the COUNTY and PrimeCo. All exhibits are
incorporated by reference.
D) The terms and conditions of this Agreement shall extend
to an bind the heirs, personal representatives, successors and
assigns of COUNTY and PrimeCo.
E) The prevailing party in any action or proceeding in court
to enforce the terms of this Agreement shall be entitled to receive
. its reasonable attorneys' fees and other reasonable enforcement
costs and expenses from the non - prevailing party.
F) COUNTY and PrimeCo agree to join in the execution of a
Memorandum of Lease Agreement for each Tower Site in proper form
for recording or filing in the official public records of MONROE
COUNTY which shall set forth the existence and terms of this
Agreement, and COUNTY and PrimeCo shall take such actions as may be
necessary to permit such recording.
G) In accordance with Florida Law, the following statement
is hereby made:
RADON GAS: Radon is a natural occurring
radioactive gas that, when it has accumulated
in a building in sufficient quantities, may
present health risks to persons who are
exposed to it over time. Levels of radon that
exceed federal and state guidelines have been
found in buildings in Florida. Additional
information regarding radon and radon testing
may be obtained from your county public health
unit.
H) The validity of any provision hereof shall not affect or
invalidate the remainder of this Use and Lease Agreement.
IN WITNESS WHEREOF, the parties hereto have made and executed
this Agreement in the respective dates under each signature: MONROE
COUNTY through its Chairman, authorized to execute same by Board
14
•
action on the day of , 1996, and PrimeCo Personal
Communications, L.P., through i s
duly authorized to execute same.
COUNTY
ATTEST: MONROE COUNTY, through its
BOARD OF COUNTY COMMISSIONERS
DANNY L. KOLA Ciff . .. 4
0
? -4 Gel , s. By
- - • �� - • Chair
Ex- Officio Clerk of the
Board of County Commissioners
of MONROE COUNTY, Florida
day of , 1996.
PrimeCo
Signed, sealed and delivered
in the presence of:
PrimeCo Personal Communications,L.P.,
a Delaware limited partnership
OUCQ 1nUO
Print Name:
Witness �'h n 1 ( � n Title : I C�ItCPrL 11'1,E= 2�TT(L.
Print Name: V ` /"�
15
Executed on b day of LS J(vP:1
Witness ' 1996.
Print Name: `/7 /Cr
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 6 day
of TJ) E , 1996, by - R DBC- /CE L 4 as -- rFenxi 44 L 2i /2E-c.
of PrimeCo Personal Communications, L.P., a Delaware limited
s era y known to me or who has pradaeed
NOT'RY PUBLIC
My Commission Expires: Print Name: J5se/ x1E CA04AE
(Seal)
OFFICIAL NOTARY SEAL
JOSEPHINE CONDE
NOTARY PUBLIC STATE OF FLORIDA
COMMISSION NO. CC270532
MY COMMISSION EXP. APR. 19, 1997
APPROVED AS TO FORM
A GAL SU FIC • C
A4 _ _
ROBERT N. W • •
DATE
3602 - mr.fnl
rev.5 /15/96
16
EXHIBIT LIST
1) EXHIBIT "A" -- County's Property and Tower Site Locations.
[TO BE ATTACHED UPON COMPLETION OF REQUIRED
ENGINEERING AND TECHNICAL APPROVAL BY COUNTY
AND PRIMECO]
2) EXHIBIT "B" -- Location of Towers and Equipment Buildings
at Tower Sites.[TO BE ATTACHED UPON
COMPLETION OF REQUIRED ENGINEERING AND
TECHNICAL APPROVAL BY COUNTY AND PRIMECO]
3) EXHIBIT "C" -- Anticipated Building Space Requirements for
each Joint Participating User.
4) EXHIBIT "D" -- Bill of Sale.
5) EXHIBIT "E" -- Survey sketch and legal description of
PrimeCo's leased parcel, including building
and tower space.[TO BE ATTACHED UPON COMPLETION
OF REQUIRED ENGINEERING AND TECHNICAL APPROVAL
BY COUNTY AND PRIMECO]
6) EXHIBIT "F" -- Insurance.
7) EXHIBIT "I" -- Interference.
8) EXHIBIT "T" -- COUNTY's antennas and equipment list.
17
•
EXHIBIT "A"
TO BE ATTACHED
EXHIBIT "B"
TO BE ATTACHED
EXHIBIT "C"
Anticipated Building Space Requirements
for each Joint Participating User
Key Islamorada Grassy Key West Stock Island
Largo Summerland
PCS 180 180 sq.ft. 180 sq.ft. 180 sq.ft. 180 sq.ft.
PrimeCo sq.ft. To be
provided by
County at no
cost
Keys To use To use To use To use To use
Microcable existing existing existing existing existing
space space space space space
AT &T 300 300 sq.ft.
Wireless sq.ft.
BellSouth 144 144 sq.ft. 144 sq.ft.
Mobility sq.ft.
Monroe 168 168 sq.ft. 168 sq.ft. 168 sq.ft. 168 sq. ft.
County sq.ft.
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that , whose
address is of the City of State
of Florida, party of the first part, for and in consideration of
the sum of Ten and No /100 ($10.00) Dollars and other good and
valuable considerations, lawful money of the United States, to them
paid by the whose address is
of the City of , State of Florida, party
of the second part, the receipt whereof is hereby acknowledged, has
granted, bargained, sold, transferred and delivered,•and by these
presents does grant, bargain, sell, transfer and deliver unto the
said party of the second part, and its successors and assigns, the
following goods and chattels:
Said party of the second part accepts said Building "as is"
and by accepting said Building acknowledges that said party of
the first part has complied with all applicable approvals,
regulations, certificates and permits required for the
construction of the Building.
TO HAVE AND TO HOLD the same unto the said party of the second
part, and its successors and assigns forever.
AND said party of the first part, and its successors and
assigns covenant to and with the said party of the second part, and
its successors and assigns, that it is the lawful owner of the
Tower Structure; that said Tower Structure is free from all
encumbrances; and that it has good right to sell the same
aforesaid.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this
day of , 199 — .
Signed, sealed and delivered
in the presence of:
By:
Print Name:
Witness Title:
Print Name:
Executed on — day of
Witness 19
Print Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 19 , by as
of -'
known to me or who has produced who is personally
as identification and who did (did not) take an oath.
NOTARY PUBLIC
My Commission Expires: Print Name:
(Seal)
5474. Do.
EXHIBIT "D" .
EXHIBIT "E"
TO BE ATTACHED
MONROE COUNTY, FLORIDA
GENERAL INSURANCE REQUIREMENTS
FOR
CONTRACT BETWEEN
MONROE COUNTY, FLORIDA
AND
PCS PRIMECO
Prior to the effective date of this agreement, the Vendor shall obtain, at his/her own expense,
insurance as specified in any attached schedules, which are made part of this contract. The
Vendor will ensure that the insurance obtained will extend protection to all Subcontractors
engaged by the Vendor. As an alternative, the Vendor may require all Subcontractors to obtain
insurance consistent with the attached schedules.
The Vendor will not be permitted to commence work governed by this agreement (including pre -
staging of personnel and material) until satisfactory evidence of the required insurance has been
furnished to the County as specified below. Delays in the commencement of work, resulting from
the failure of the Vendor to provide satisfactory evidence of the required insurance, shall not
extend deadlines specified in this contract and any penalties and failure to perform assessments
shall be imposed as if the work commenced on the specified date and time, except for the
Vendor's failure to provide satisfactory evidence.
The Vendor shall maintain the required insurance throughout the entire term of this agreement to
include any and all extensions.
The Vendor shall provide, to the County, as satisfactory evidence of the required insurance,
either:
• Certificate of Insurance
or
• A Certified copy of the actual insurance policy.
The County, at its sole option, has the right to request a certified copy of any or all insurance
policies required by this contract.
All insurance policies must specify that they are not subject to cancellation, non - renewal, material
change, or reduction in coverage unless a minimum of thirty (30) days prior notification is given
to the County by the insurer.
The acceptance and/or approval of the Vendor's insurance shall not be construed as relieving the
Vendor from any liability or obligation assumed under this contract or imposed by law.
The Monroe County Board of County Commissioners, its employees and officials will be included
as "Additional Insured" on all policies, except for Workers' Compensation.
Any deviations from these General Insurance Requirements must be requested in writing on the
County prepared form entitled "Request for Waiver of Insurance Requirements" and approved
by Monroe County Risk Management.
GENERAL LIABILITY
INSURANCE REQUIREMENTS
FOR
CONTRACT BETWEEN
MONROE COUNTY, FLORIDA
AND
PCS PRIMECO
Prior to the commencement of work governed by this contract, the Vendor shall obtain General
Liability Insurance. Coverage shall be maintained throughout the life of the contract and include,
as a minimum:
• Premises Operations
• Products and Completed Operations
• Blanket Contractual Liability
• Personal Injury Liability
• Expanded Definition of Property Damage
The Vendor will ensure that such insurance will extend to property damage to property owned by,
rented to, or controlled by the County.
The minimum limits acceptable shall be:
$1,000,000 Combined Single Limit (CSL)
An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy, its
provisions will include coverage for claims filed on or after the effective date of this contract. In
addition, the period for which claims may be reported should extend for a minimum of twelve (12)
months following the termination of this, and any extensions of this agreement.
The Monroe County Board of County Commissioners shall be named as Additional Insured on all
policies issued to satisfy the above requirements.
•
VEHICLE LIABILITY
INSURANCE REQUIREMENTS
FOR
CONTRACT BETWEEN
MONROE COUNTY, FLORIDA
AND
PCS PRIMECO
Recognizing that the work governed by this contract requires the use of vehicles, the Vendor,
prior to the commencement of work, shall obtain Vehicle Liability Insurance. Coverage shall be
maintained throughout the life of the contract and include, as a minimum, liability coverage for:
• Owned, Non - Owned, and Hired Vehicles
The minimum limits acceptable shall be:
$1,000,000 Combined Single Limit (CSL)
If split limits are provided, the minimum limits acceptable shall be:
$ 500,000 per Person
$1,000,000 per Occurrence
$ 100,000 Property Damage
The Monroe County Board of County Commissioners shall be named as Additional Insured on all
policies issued to satisfy the above requirements.
WORKERS' COMPENSATION
INSURANCE REQUIREMENTS
FOR
CONTRACT BETWEEN
MONROE COUNTY, FLORIDA
AND
PCS PRIMECO
Prior to the commencement of work governed by this contract, the Vendor shall obtain Workers'
Compensation Insurance with limits sufficient to respond to the applicable state statutes.
In addition, the Vendor shall obtain Employers' Liability Insurance with limits of not less than:
$1,000,000 Bodily Injury by Accident
$1,000,000 Bodily Injury by Disease, policy limits
$1,000,000 Bodily Injury by Disease, each employee
Coverage shall be maintained throughout the entire term of the contract.
Coverage shall be provided by a company or companies authorized to transact business in the
state of Florida and the company or companies must maintain a minimum rating of A -VI, as
assigned by the A.M. Best Company.
If the Vendor has been approved by the Florida's Department of Labor, as an authorized self -
insurer, the County shall recognize and honor the Vendor's status. The Vendor may be required
to submit a Letter of Authorization issued by the Department of Labor and a Certificate of
Insurance, providing details on the Vendor's Excess Insurance Program.
If the Vendor participates in a self - insurance fund, a Certificate of Insurance will be required. In
addition, the Vendor may be required to submit updated financial statements from the fund upon
request from the County.
ATTACHMENT "I"
INTERFERENCE / CONFLICTS
Lessee shall, at it's own expense, maintain their equipment on or attached to the premises
in a safe condition, in good repair and in a professional manner, suitable to Monroe
County and in accordance to any County, State or Federal laws and regulations.
Lessee's equipment shall be installed and maintained in a manner so as not to conflict or
interfere with Monroe County or any other entity utilizing the facility.
IN THE EVENT OF INTERFERENCE:
1. The entity being affected by the interference will notify the Monroe County
Emergency Communications Department.
2. The Monroe County Emergency Communications Department in joint
participation with the entity being affected will- respond within 24 hours to the
facility and begin analysis of the problem.
3. Upon identification of the interference source, the responsible entity will be
immediately contacted, followed with a written notice.
4. The licensee responsible for the interference will within 24 hours begin all steps
necessary to correct and eliminate the interference at their expense.
5. Should the interference not be minimized within 72 hours or eliminated within
30 days, Monroe County may elect to terminate this agreement or correct the
interference problem at the lessee's expense.
Lessee has satisfied itself and hereby represents and warrants to Monroe County that no
such obstruction or interference with transmitting or receiving shall result to Monroe
County or other licensees located at the facility. Lessee agrees to indemnify, hold harmless
and defend Monroe County against any damage, including attorney's fees, arising out of
such obstruction or interference with respect to uses which are in effect as to the date of
this agreement.
•
ATTACHMENT "T"
The attached sheets are the allocated antennas, feedlines and locations engineered and
negotiated for the proposed new towers. This attachment as part of this agreement insures
compliance and understanding of the allocated antenna loading and space requirements.
Monroe County will maintain control to assure compliance of tower loading. All changes,
additions or loading requirements will be approved or denied by Monroe County's
Emergency Communications Department. Monroe County will not without reasonable
cause deny or delay changes or additions, however, Monroe County may require current
market value considerations for additional loading requirements.
•
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